ANALYSIS OF SEPTEMBER 17, 2015 SUPREME COURT OPINIONS
[Posted September 17, 2015] Today is an important anniversary in legal history: 228 years ago today, the most important document in American history was signed in Philadelphia. (No, not the Declaration; that other one.) It’s also the first of the Supreme Court’s rolling-release opinion days. The court hands down seven published opinions from appeals that were argued in the June session.
The shortest opinion of the day comes from the pen of Justice Kelsey: Wooten v. Bank of America implicates the doctrine of judicial estoppel. The appeal involves a bank’s claim for an equitable lien against real estate. Here’s the timeline:
Husband buys Blackacre in 2002 and gets sole title (this is actually before he became a husband; see the next sentence). In 2005, he marries Wife. In 2007, he borrows money from the bank, giving it a lien against the property by deed of trust. That loan closes on November 15.
About a week later, Husband signs a deed that conveys Blackacre to himself and Wife as tenants by the entireties. He records that on November 26. Ten days later, on December 6, the bank finally gets around to recording the mortgage.
Dirt lawyers will see the problem immediately: since the deed of trust didn’t hit the clerk’s office until after the deed of conveyance, the lien isn’t valid against Wife. After all, she hadn’t signed the mortgage documents. The parties presumably believed that the mortgage had already been recorded, so Wife would take title subject to the “preexisting” lien.
I infer that nothing untoward happened until about 2012, when (1) Husband and Wife entered into divorce proceedings, and (2) payments stopped on the mortgage. When the bank sought to foreclose, it discovered the problem created by the inverted recordations. The bank sued, seeking various forms of equitable relief; the primary object of the suit was to validate the lien as against Wife’s title.
In the divorce, a judge entered a decree that did several things. The most relevant here is that it noted that Blackacre was in foreclosure, so upon its sale, Husband and Wife would split the net proceeds (or the net shortage) equally. The court ordered the parties to cooperate in the sale, and to execute all papers necessary to carry it out. Wife’s lawyer endorsed the decree as “Seen.”
Now we’re back to the suit filed by the bank. The bank’s lawyer took that decree and handed it to the judge in the equitable case, saying that Wife could not now deny that she was obligated on the loan, because of the language in the divorce decree. The judge agreed and held that Wife was barred by judicial estoppel from asserting that the mortgage didn’t bind her.
Today the Supreme Court reverses and remands the case for further proceedings. The justices find that judicial estoppel doesn’t apply in this situation, because Wife never made an affirmative representation that she’s seeking to repudiate. True, the divorce-court judge made “statements” in its order that could be relevant; but merely endorsing an order as “Seen” isn’t an adoption of those statements as one’s own.
No doubt the bank will be dissatisfied with this outcome, but I believe that this ruling is entirely correct; affirming would require taking the doctrine of judicial estoppel in a direction it’s never taken before.
One last point: today’s opinion contains a very useful discussion of the difference between judicial estoppel and the related concept of approbating and reprobating. If you’re handling litigation where you’re contending that a party has changed its position, this short opinion is required reading, and you’ll probably wind up citing it.
Limitation of actions
Heads up; there’s a major-league trap for the unwary in Allstate Property & Casualty Ins. Co. v. Ploutis. This is a suit by a homeowner to recover on a fire-insurance policy for damages to her home.
The policy provided that any action against the company had to be brought within two years of the date of loss. The homeowner did that, suing two days before that deadline. She later nonsuited and refiled just short of six months later.
So, we’re okay, right?
Well, that’s the issue in the case. The insurer sought to dismiss the case based on the fact that the second suit had been filed more than two years after the loss. The trial court disagreed, but today, the Supreme Court reverses and enters final judgment for Allstate.
How can this be? The nonsuit statute specifically tolls the statute of limitations, and this homeowner did everything by the book – or so you’d think. But the tolling statute tolls statutes of limitations. This is a contract of limitations. The language isn’t provided by statute, and parties are free to contract for any provision they wish; they don’t thereby import tolling statutes.
The homeowner tried one other tack, arguing that insurance law mandates certain provisions in fire-insurance policies. One of those provisions is a two-year period for filing claims, so arguably this is a statutorily imposed limitation period. The justices disagree, finding that the fact that contract provisions are mandated (the insurance company can use alternate language, but it has to be at least as favorable to the insured as the statute) doesn’t convert it from the realm of contract.
The trial judge had ruled, perhaps as an alternate ground, that the refiled action was just a continuation of the nonsuited one. But under well-established caselaw, that isn’t true; a refiled action is entirely separate from the original one.
The trap for the unwary here should be blindingly obvious now: in actions that are governed by contracts, you cannot nonsuit and expect to be able to refile after the expiration of the original limitation period.
Freedom of Information
I have a dim sense of a tide turning in Virginia’s FOIA jurisprudence. Going back several years, the Supreme Court’s rulings, as a whole, came down firmly on the side of those who advocated openness in government. When a governmental agency that denied access to records, a citizen who litigated the withholding enjoyed a decided advantage in court.
That advantage remains, in the form of the liberal interpretation that courts are supposed to give to FOIA, including narrow construction of exemptions. And yet, earlier this year, the court dealt open-government forces a blow in Fitzgerald v. Loudoun County Sheriff, holding that a record of a criminal investigation of a death doesn’t lose its exempt status after the investigation reveals that the death was a suicide. Today, the justices again side with a governmental entity.
Today’s decision is Department of Corrections v. Surovell. The appellee is a state Delegate who sought various records relating to Virginia’s execution chamber outside Jarratt, in Greensville County. The department resisted, noting among other things that the records might endanger the security of the prison, its inmates, and its staff.
A trial judge – and I’ll go ahead and say this now: the trial judge was Jane Roush of Fairfax, who now sits on the Supreme Court – directed the department to produce certain categories of records, and redacted excerpts of others. For our purposes, the categories aren’t crucial; what matters for us is the procedure that the justices use in reversing.
The relevant statute exempts documents relating to public safety “to the extent such disclosure would jeopardize the security of any governmental facility,” etc. Citing with approval caselaw from elsewhere, the Supreme Court rules that a trial court has to accord substantial weight to the views of the administrative officials in charge of the prison, particularly in their assessment of the effect of disclosure on security.
At the circuit-court hearing, a prison official had indeed testified about the potential for disruption, either of prison operation or the execution itself, that disclosure would produce. The Supreme Court notes that the trial judge hadn’t stated what level of deference she gave that testimony, so it remands for the trial court to reevaluate the case using the newly announced standard.
The justices next reverse on an issue that might surprise you: the court holds that there’s no authority in this section of FOIA to order redaction. In essence, if any portion of a document is exempt, the government can withhold the whole thing. That sound you just heard was a collective gasp from open-government advocates.
This aspect of the ruling draws a partial dissent; Justice Mims, writing for Justice Goodwyn, notes that another FOIA statute requires a custodian to identify when a part of requested records is exempt, and to produce the non-exempt portion. He contends that the particular exemption that relates to prison documents doesn’t override that basic obligation.
Of course, when the case is reconsidered on remand, a new judge will have to undertake the analysis, since former Judge Roush has other duties now. That being said, the Supreme Court’s opinion today telegraphs pretty well, at least to me, how that hearing is going to come out.
Just as the Wooten decision, discussed above, provides a very helpful explanation of the doctrine of judicial estoppel, today’s ruling in Lee v. Spoden will serve as an especially valuable discussion of the various forms of res judicata.
The factual and procedural history is a little convoluted, but the basics are these: Lee founded a company to provide consulting services to health-care professionals. A year later, he married Spoden, and he gave his new wife a 50% interest in the company. About a decade later, the business bought property in Florida.
Alas; love faded, and five years after that purchase, the wife sued for divorce. The parties reached a fairly comprehensive written agreement that provided several relevant terms. The wife surrendered her 50% share, but would become a salaried employee of the company. The company continued to own the Florida property, and when it sold, the wife would get the net proceeds. This agreement made its way into the final divorce decree.
Several years later, the now ex-wife sued her ex-husband and the company for breach of contract and of fiduciary duty, claiming that the husband had blown the deal and seeking various forms of relief. At a hearing on the defendants’ demurrer, the trial court noted that the wife’s real remedy wasn’t to file a suit for damages; it was to get a show-cause order, enforcing the divorce decree.
Wife was happy to comply; she amended her complaint and separately filed a show-cause petition. The court tried the show-cause proceeding first, and after hearing evidence, ruled in favor of the husband. With a final order in hand, the company (now 100% owned by the husband) sold the Florida property.
Right after that sale, the defendants showed the final order in the contempt case to the judge in the breach-of-contract action, and asked for summary judgment based on res judicata. No dice, the judge ruled; we’re trying the contract case next. At that trial, the court granted the wife’s motion to exclude the contempt order, on the grounds that it was prejudicial to the husband.
The final legal issue is that the wife moved, at the close of all the evidence, to amend her complaint. Her initial pleading hadn’t listed an amount sued for; she sought to make that roughly $250,000. Over the defendants’ objection, the court ruled that he didn’t think she needed to amend; but in the alternative, he granted her motion.
A jury gave the wife almost $139,000; the defendants appealed. On appeal, the results are technically mixed, but don’t be fooled; the husband and his company walk away with all the really valuable rulings today.
Justice Powell’s opinion for a divided court provides a terrific explanation of the contours of res-judicata law in Virginia. She explains the two types of claim preclusion (bar, when a defendant wins in prior litigation; and merger, when a plaintiff wins) and the two types of issue preclusion (direct estoppel and collateral estoppel) and how they apply in this case; the opinion will serve as a lasting primer for those of you with res-judicata issues of your own.
The court rules that when the husband won in the contempt proceeding, that win necessarily decided in his favor the factual issues (except one) in the contract suit. The court notes that a contempt judgment can serve as the basis for res judicata’s preclusive effect; that the husband and his company were in privity; and that the two cases involved the same conduct, transaction, or occurrence. Hence the husband was entitled to final judgment on those issues.
I mentioned just now that one issue wasn’t barred: wife asserted that the husband and his company had sold the Florida property in bad faith. (Since that sale occurred after the contempt proceeding ended, it obviously couldn’t have been decided in that earlier judgment.) The justices send this claim back for further proceedings, though they caution that the wife will still be still bound by the factual determinations in the contempt case.
The Supreme Court next takes up the issue of the exclusion of the contempt judgment as evidence in the contract trial. Observing that all evidence against you is likely to be somewhat damaging, the justices point out that Virginia’s rules only bar evidence that the court finds to be unfairly or unduly prejudicial to the opponent. The contempt judgment was undeniably the truth, and it was the heart of the husband’s defense; he actually waited until a court told him he was allowed to sell the house before he closed. The justices rule that this evidence should have been admitted, and it presumably will be on remand.
Finally, the court addresses the ad damnum issue, noting that it, too, will foreseeably arise again on remand. This is the one issue on which the wife wins; the court finds that while the trial court’s ruling on the necessity for amendment is suspect, its alternative ruling, actually granting leave, was unappealed. That ruling is therefore the law of the case, so the judgment that was in excess of a $0 ad damnum, as originally pleaded, is allowable.
Of course, that favorable judgment has just been vacated, so this is only a technical victory. In addition, please, please do not take this as an endorsement by the justices of the practice of filing a suit without a damages clause. The Rules of Court now require such a clause, and this issue only comes out this way because of the failure to appeal that ruling. Nor should you count on this case as precedent to support the amendment of the ad damnum at the conclusion of all the evidence. The defendant is entitled to a continuance if you do that, assuming the judge rules in your favor on the relief requested. The better practice, of course, is to move to amend early, as soon as you perceive the need.
One of today’s more enjoyable reads is REVI, LLC v. Chicago Title Ins. Co. It is, predictably, a claim on a title-insurance policy. REVI is a company that bought five acres of land in Fairfax County in 2000 after getting a clean title report and an owner’s policy from Chicago Title. When the company went to develop the property, it got a rude shock in the form of a set of restrictions on the land, imposed by a federal condemnation back in the 1960s.
Well, this is one of the reasons you buy owner’s title insurance. The company called Chicago Title. The insurer negotiated with the feds and obtained a limited release of the restrictions. Reading between the lines, something like the following exchange then took place:
INSURER: This is the best deal we could make with Uncle Sam. They’ve agreed to waive several of the restrictions, so you can still use the property.
OWNER: But not all of the restrictions? What if the remaining restrictions impair the value of the land? We paid good money for that property, and you guaranteed us that we’d have good title to it.
INSURER: Relax. If we determine that your land has suffered a diminution in value because of the remaining restrictions, we’ll indemnify you for any losses.
OWNER: Okay; I guess that should work, as long as we’ve got your word. [Signs agreement and hands it back to insurer.]
INSURER: Thanks. And, by the way, we’ve determined that there is no diminution in value, so we ain’t paying you anything.
OWNER: [Four-letter Anglo-Saxon words deleted]
Of course, the owner later decided that the property was indeed diminished in value – otherwise we wouldn’t have a lawsuit to talk about here – and it demanded money, which the insurer refused to pay. That led to court, where the owner sued the insurer for damage and for statutory attorneys’ fees for a bad-faith denial.
The insurer asked the court to bifurcate the trial, with a jury to decide the primary claim and the trial judge to handle the bad-faith part. The judge agreed to bifurcate, but held that the jury would decide both aspects of the case. The jury hit the insurer for $1.2 million on the main claim and $440,000 in attorneys’ fees for a bad-faith refusal to pay.
But before that verdict could be reduced to judgment, the insurer asked the judge (a different judge tried the case than the one who had ordered the limited bifurcation) to rethink the bifurcation ruling. That motion succeeded; the judge took away the bad-faith verdict and entered judgment, based on his own view of the evidence, in favor of the insurer on that part of the case.
The owner took the case to Richmond, where the justices granted a writ. Today, a majority of the court affirms the decision to set aside the bad-faith verdict. The heart of the issue is that the statute says that “the court” determines if there’s a bad-faith denial, and if so, “the court” can award attorneys’ fees. Does that phrase refer to the judge only, or can a jury decide? If the latter, then the verdict can be reinstated.
There are three opinions in today’s batch for this case. Justice Mims writes for the chief justice plus Justices Goodwyn, Powell, and Millette (who heard this case before he retired, and is now listed as a senior justice). The majority explores the legislative history of the statute and concludes that the phrase the court in this context means the trial judge, and doesn’t permit jury resolution of the bad-faith issue. Back when insurance law resided in Title 38.1, the law provided that “the trial judge” would make those calls. That’s unambiguous, of course; but when the legislature recodified that title, the new statute used the term the court.
The majority concludes that since this was a recodification instead of an ordinary amendment, the usual rule (a change in language implies a substantive change in the law) doesn’t apply. It finds support in legislative history for the premise that this change was not intended to alter the previous procedure.
Justice McClanahan files a concurrence, disdaining the legislative-history approach in favor of a contextual view:
In a vacuum, the term “court” can be understood to include both judge and jury. But in the context of a statute providing for a finding or determination to be made by “the court,” the General Assembly has consistently used the term “court” to refer to the trial judge.
This has the advantage of avoiding the messy approach of heading straight for the legislative history when attempting to understand a statute. And that brings us to Justice Kelsey’s dissent.
Trust me, when it comes to legal history, no one, no one, is going to “out-history” Justice Kelsey. In the twelve pages of his dissent, you’ll bump elbows with Blackstone and Coke and Black (the original editor of Black’s Law Dictionary). You’ll meet Justice James Wilson, a signer of that Declaration that I mentioned a while back, who went on to sit in the inaugural session of the Supreme Court of the United States. You’ll see a dizzying array of statutes in which the General Assembly has taken care to spell out when it means to exclude the jury from “the court.”
All of this comes against a powerful backdrop: Justice Kelsey is an extraordinarily strong advocate of jury resolution of factual disputes. He’s written extensively on the topic, and if you read his dissent in this case, you’ll see how ardently he believes in the jury as a bedrock component of our legal culture.
In that sense, it’s hard to argue with him. After all, the Constitution of Virginia has that wonderful language (Art. I, §11) praising trial by jury and urging that it be “held sacred.” Justice Kelsey argues that when we have a genuine dispute about what a statute means, doesn’t it make more sense to turn for guidance to our primary legal document, instead of some often-fuzzy legislative history?
In the end, statutory interpretation comes down to a simple question: what do we think the legislature meant? If it’s abundantly clear from the words themselves, then there’s no interpretation required; you just apply the plain language. In this context, Justice Kelsey chides the majority for finding that there’s a “commonly accepted definition” of the phrase the court, saying that if that were the case, the court would just “consult our favored dictionary and be done with it.”
One last point: I’ve reported in years past that the Supreme Court of Virginia has been firmly committed to jury resolution of factual disputes. In recent years, I’ve noticed some slippage in that commitment, as the court has, at least in my view, accorded less of that deference in a noticeable number of decisions. Justice Kelsey’s dissent here, and his writings elsewhere, indicate that he is now the court’s strongest trial-by-jury advocate. Personally, I regard that as a good sign.
Read this decision, even if you don’t practice in the field of insurance law. It’s entertaining and educational, and gives you a good picture of how various justices go about the task of determining what statutes mean.
Bratton v. Selective Ins. Co. presents a tragic story with a complex legal dispute. It’s a coverage question, and the justices differ sharply on the answer.
The case arose from a fatal accident involving a road construction worker. The decedent was operating a dump truck that was helping to spread hot asphalt onto the side of a roadway. He periodically got out of the cab to check for spilled asphalt, which could harden on the roadway if not cleaned up immediately. At one point, he got out and walked about nine feet toward the rear of the truck. Two drunk drivers then collided with a front-end-loader near the truck, causing that equipment to slam into him, crushing him against the dump truck. He died from his injuries.
The issue in this litigation is whether the estate was entitled to tap the coverage that applied to the dump truck and to a pickup truck that was parked about 200 feet away, with its safety flashers on as a warning to traffic. The dispositive issue is whether the decedent was “occupying” either or both vehicles. In the language of the policy, that word means “in, upon, using, getting in, on, out of or off.”
In declaratory-judgment litigation to determine if coverage existed, a trial judge heard evidence and ruled in favor of the insurance companies. The court made several specific factual findings that are set out on pages 31-32 of the slip opinion. In brief, the court ruled that the decedent had already gotten out of the dump truck and walked a short distance, so he didn’t meet the definition of occupying. As for the pickup truck, it belonged to another contracting company, and there was no evidence that the decedent even knew it was there.
Today’s decision sharply divides the justices. Justice Millette writes the opinion of the court, and he’s joined by the chief justice, Justice Mims, and Senior Justice Lacy. This is the longest opinion of the day, so I won’t go into the level of detail that the court does, but the court’s majority votes to reverse, holding that the decedent was “getting out of” the dump truck and was “using” the pickup truck at the time of the collision. That means that the estate can recover on the UIM provisions of both trucks’ insurance policies.
Coverage gurus will jump all over the legal analysis of this case, since I perceive that it breaks some new ground in Virginia law. Most important, the court adopts a test – perhaps it would be more accurate for me to call it a method of analysis – that considers:
the totality of the circumstances – including the individual’s proximity to the vehicle, the duration of time during which the individual acts, the particular actions taken, the situation in which the individual is acting, the motivation for the individual’s actions if any can be ascertained, and the purpose of the policy’s coverage – to determine whether the individual was “getting out of” the vehicle. And if those circumstances establish that the individual was no longer “vehicle-oriented,” then the act of “getting out of” the vehicle was complete.
Now you see why I’m not willing to call it a test. This analysis will necessarily be subjective. It can also lead to some incongruous results, such as the one here, where a person can get out of a truck and walk away, while still being in the process of getting out.
Justice Goodwyn files a short partial dissent, agreeing with the majority’s analysis about the dump truck while disagreeing on the pickup. But the real fireworks are in Justice Kelsey’s lengthy dissent, where he’s joined by Justice McClanahan.
The dissent begins with the age-old proposition that bad facts make bad law. (Actually, the original formulation of this adage was, “Great cases like hard cases make bad law,” from an opinion by Oliver Wendell Holmes. But it’s been expressed as “bad cases” often enough that no one will quibble.) What follows is a detailed analysis of the Supreme Court’s prior caselaw, indicating that the court is now departing from a wealth of precedent.
The trial judge made several factual findings, and based his ruling on those. The dissent notes that the majority effectively reweighs the evidence in the estate’s favor, thereby violating a venerable rule of appellate review. The dissent also cites several previous cases that would, you would think, lead to an affirmance on this record. But it’s all for naught, as the insurer does everything right in the case except get to four votes.
I’ll add one last point, and it’s to return to that Holmes quotation I mentioned just above. The full passage, from Northern Securities Co. v. US, 193 US 197, 400-01 (1904) is worth quoting, if only for the light it sheds on this case and others like it:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what was previously clear seem doubtful, and before which even well settled principles of law will bend.
You’ll have to forgive Justice Holmes’s use of which in place of that on a couple of occasions there — you can probably put that down to changing patterns of American English usage in the intervening century — but this passage and the sentiment behind it underlie the whole of Justice Kelsey’s argument.
In yet another 4-3 decision, the court arguably plows some new legal ground in Evans v. Commonwealth. It’s a Fourth Amendment case involving entry into a home without a warrant.
The facts are fairly straightforward, and are undisputed. Three police officers, on bike patrol in a Norfolk neighborhood, noticed a strong odor of marijuana coming from the second-floor window of an apartment. The knocked on the door of the apartment and a woman answered. The officers said they were investigating the odor, and asked how many apartments were in the building. The woman said it was just her apartment. Then she did a remarkable thing: she closed the door.
Okay, maybe that’s not quite so unusual, since citizens have a right to refuse entry to police officers. An officer knocked again, and the woman answered again. He told her they could smell marijuana coming from the apartment. She answered, glibly enough, “Ain’t nobody smoking weed in here.” She closed the door again, but not before the officer smelled the same odor again, this time through the doorway.
One more time, the officers knocked. This time, it took five minutes for the woman to answer, during which time the officers heard movement inside. When the woman opened the door this time, she saw the officers and tried immediately to close it, but one of the officers stopped her, placing his hand and foot against the door to prop it open. He told her, “You can’t close the door on us,” and that he and his colleagues were coming inside to investigate.
They did indeed enter, and when they got to the second floor, they found Evans, who is the woman’s son, coming out of a bedroom. He rapidly gained a pair of handcuffs. After obtaining the consent of the woman and the son to search the place, the officers found drugs, guns, ammunition, and more currency than I usually keep around the house.
Do you remember the part where the police had a warrant? No? Well, you’re on to something. Evans moved to suppress the warrantless entry and search, but the trial court denied that motion. Evans entered a conditional guilty plea and took the appellate highway.
He got no help at the first stop on that road, as the Court of Appeals refused his petition. But at least one of the justices found something interesting in the case.
Today a bare majority votes to affirm the conviction. The majority notes that police can enter a home without a warrant as long as exigent circumstances exist, and the court finds that exigency here in two circumstances:
first, the cloud of heavy and extremely strong marijuana odors, some of which blew through the open doorway “like a gust of wind,” and, second, the contemporaneous knowledge of Evans’ mother that the investigating officers at her doorway smelled the marijuana, which would naturally give her a potent incentive to destroy, discard, or hide the illegal drug (or ask others to do so) soon after she closed the door. By themselves, these facts establish exigent circumstances based upon Grissett, Cephas, and a host of analogous cases.
Not that that’s all; the court adds a belt to the suspenders in its next paragraph:
Those facts, while sufficient in themselves, are not the only facts in this case demonstrating exigent circumstances prior to the officers’ entry into the apartment. After one of the officers explained to Evans’ mother that they smelled marijuana coming from the apartment window (even as the odor continued to pour through the doorway), she slammed the door in his face. She was noticeably shaking and nervous as she did so.
The court also cites the woman’s Ain’t-nobody remark to top off the sundae, finding that, “The Lady doth protest too much.”
Now, I’m never against inserting a little literature into legal opinions from time to time, though my taste runs more to Mark Twain and Alexandre Dumas. In any event, this line from Hamlet illustrates nicely the majority’s point that a hasty denial in circumstances like this can indicate deception. And that adds heft to the conclusion that the officers had reason to suspect that criminal activity was afoot, and that evidence was about to be destroyed, two of the classic components of exigent-circumstances analysis.
But hold on; there’s a powerful dissent by Justice Mims, joined by Justices Goodwyn and Millette. There’s no Shakespeare in it, but the dissent offers sound reasons why those who value civil liberties should shudder at this holding.
I’m a big fan of stating your argument succinctly and as forcefully as you can, remaining faithful to the record. I try to do that in each brief I file, and I think it works well. Rather than subjecting you to my summary of the dissent’s key contention, I’ll give you Justice Mims’s excellent formulation of the problem. This is the introductory sentence of his dissent:
Today, the majority permits the government to dispense with the constitutional requirement to obtain a warrant before entering a private residence if law enforcement officers have probable cause to suspect criminal activity, make contact with an occupant, and announce their suspicions before entering.
How’s that grab you? At least at a visceral level, most of us probably expect more than that before the police can enter our homes. But according to the dissent, whenever the police suspect criminal activity inside a home, they can create their own exigent circumstances just by doing what cops are supposed to do: knock and announce. That (as the dissent sees today’s majority holding) leads to the conclusion that evidence of wrongdoing is likely to be destroyed simply because the inhabitants know that the police are outside.
The dissent understandably leans heavily on the Big Supremes’ recent decision in Kentucky v. King from 2011. In that case, the Court held that the mere fact that the occupant knows that the gendarmes are outside doesn’t create an exigency.
There’s plenty more where that came from. I found both the majority and the dissent to be clearly written and engaging to read; I think you will, too. But something tells me that Evans’s lawyers might be getting out the map of I-95 north from Richmond, so we may not have heard the last of this yet.