FURTHER ANALYSIS OF MARCH 28, 2019 SCV DECISIONS
(Posted March 29, 2019) As promised, here’s some additional detail on yesterday’s published opinion from the Supreme Court, plus notes on the two published orders handed down yesterday, and a first-quarter David-Golilath Index.
Criminal law
Yesterday’s note on Collins v. Commonwealth gave you the decision and the voting lineup. The majority opinion concludes that the officer’s actions didn’t violate clearly established controlling appellate opinions, so the officer could have had a good-faith basis to believe that he could conduct a limited search on the curtilage of Collins’s home. You’ll see the majority’s line of reasoning in the analysis section of the opinion. But it isn’t hard to read between the lines — you don’t even have to squint — to perceive the majority’s patent hostility to the exclusionary rule.
The opinion begins by citing a string of decisions that limit the rule’s application, pointing out for example that the rule is a creature of caselaw and was unknown to the Founders. You will search in vain for any mention of the numerous decisions that explain the salutary purpose of the rule; this opinion is not intended to be a balanced presentation. (In fairness, that’s the dissent’s job.) The majority cites, for example, dissenting SCOTUS opinions and other writings from some of the Court’s most conservative members.
Here’s a good illustration, a line from a dissent by Justice Thomas: “Historically, the only remedies for unconstitutional searches and seizures were ‘tort suits’ and ‘self-help.’” I will confess that I never envisioned self-help as a remedy for Fourth Amendment violations; perhaps his Honor expects that the criminal defendant’s remedy is to break into the Police Department’s evidence room and steal the incriminating evidence back, so the prosecutor can’t use it. As for tort suits, you can imagine that a monetary damage award — assuming you can get one from a jury while serving prison time — is likely to be cold comfort for someone who’s lost his liberty.
The court then applies prior holdings from SCOTUS and the SCV to rule that, given the state of the law at the time of this arrest, the right to be free from a vehicular search in one’s curtilage wasn’t well-established. That right became established when the folks at One First Street sent this case back for reconsideration. Thus, although the search violated the Fourth Amendment, the exclusionary rule doesn’t apply.
Three members of the majority would go on to add anther ground for affirming the conviction. That’s the one that the Big Robes gently suggested at the conclusion of Collins v. Virginia: exigent circumstances. These three justices would have held that a number of factors, such as the inherently mobile nature of a vehicle like this, made it all too possible for Collins to run over to it, hop on, and speed away, much as he had eluded police at high speeds before. They also cite the officer’s minimal incursion into the curtilage. But since only three justices vote this way, that doesn’t form a part of the court’s ruling in this appeal.
Justice Mims’s dissent begins with the ruling that the majority didn’t make, that of exigent circumstances. He notes that it wouldn’t have been possible to make a quick getaway here, because the bike was covered with a form-fitting cover that was secured at the bottom, and was basically wedged into a tight space next to a car. In his words:
Thus, driving the motorcycle away would first require Collins or the hypothetical accomplice to approach it; remove the cover (which, incidentally, would have exposed it to plain view); either back it out of the driveway for the length of the retaining wall or attempt to turn it around, if the narrow width of the driveway between the retaining wall and the house accommodated the turning radius increased by its extended body; mount it; and turn it on.
As for the Commonwealth’s contention that sending an officer to get a warrant might have taken too long, the dissent points out that the officer at the scene could have secured the driveway for the limited time it took, a minimal seizure that’s less intrusive than a warrantless search.
The dissent then turns to the good-faith argument. The dissenting justices believe that the two prior decisions on which the officer here could have relied are distinguishable. They conclude with this memorable passage: “This is a fundamental question of whether the government has a right to search or whether a citizen has a right to privacy. The Founders protected only the latter in the Constitution.“ I believe they’re right. Don’t mistake my bias here; I used to prosecute vehicular crimes like this, and criminal suspects who come to me looking for a sympathetic ear have probably signed up for disappointment. But as the dissent urges, in close calls, the courts should err, if at all, on the side of requiring a warrant. I believe that the majority has erred here, in the other direction.
In a published order, the court also decides the appeal of a police officer who was convicted of voluntary manslaughter in the shooting of a suspect. The case is Rankin v. Commonwealth, and comes to us via the Court of Appeals. For our purposes, the key factual issue is that immediately after the shooting, a recording device caught the officer saying to a fellow officer, “I need you as a witness. It’s my second one. Don’t leave.” (Rankin had one prior fatal shooting in his police career.) The officer moved in limine to exclude this statement, fearing its prejudicial effect on a jury. The trial court denied that motion, the statement came into evidence, and the jury got him.
The Court of Appeals affirmed, holding that the statement “did not indicate [Rankin] had shot and killed another person.” It also decided that the statement came within recognized hearsay exceptions and so was admissible. Finally, the court held that any error in admitting the evidence was harmless, as the officer had had a fair trial.
The officer got a writ from the justices, but yesterday the Supreme Court affirmed without reaching the merits of the officer’s arguments, finding that he hadn’t assigned error to the harmless-error ruling. Since that was an independent ground for the affirmance below, the Supreme Court affirms on the unappealed ground, applying something known at the court as the Manchester Oaks doctrine. That rule sensibly holds that you can’t do an end-run around an adverse ruling by ignoring it and appealing only a companion finding.
But wait. Here’s the officer’s assignment of error: “The trial court erred and abused its discretion when it permitted, over Mr. Rankin’s objection, the admission of the statement: ‘It’s my second one,’ which was made by Mr. Rankin to Mr. Provo immediately following the shooting of Mr. Chapman. This statement was unduly prejudicial to Mr. Rankin and it was irrelevant as it was not probative of any fact before the court.“ (Emphasis supplied)
A finding of harmless error rests on the assumption that the error could not have affected the outcome of the case: Even if it’s wrong, it didn’t matter. But the officer here has asserted that the evidence was unduly prejudicial. To most legal observers, that necessarily means that the officer was harmed by the admission of the evidence. That’s what unduly prejudicial means. This is at least a plausible attack on the harmless-error finding, but the justices today rule otherwise.
In case you’re wondering, I suspect (without reading the briefs) that the answer is no: The officer can’t appeal to SCOTUS. That’s because there are no obvious federal-law issues involved here. On questions of Virginia law, the Supreme Court of Virginia is the court of last resort.
Finality
In another published order, the court breaks new ground in the field of finality, always a subject of keen interest for appellate lawyers. In Dwyer v. Town of Culpeper, the justices explore yet again the effect of a trial court’s retaining jurisdiction over a case while entering an otherwise final, appealable order.
This appeal implicates the unity-of-lands doctrine. Dwyer owned eight contiguous parcels in Culpeper, and desired to develop them together for multifamily housing. He contracted for the requisite engineering work and submitted a site plan to the Town for approval. While the site plan was under review, the town condemned parts of three of the parcels. This, in the landowner’s view, made the development unviable. He sought damages based on his development plans.
If this sounds vaguely familiar, you may be thinking of a previous major unity-of-lands decision, CTC v. Glass from 2005. The justices reversed a damages award there because Glass’s development plans — really just vague ideas — were too ill-defined to be anything other than speculative. Here, the landowner was much further along, so he hoped to persuade the jury that these parcels should all be considered together. But the trial court refused his proposed jury instruction and the jury gave the owner a reduced award.
The trial court entered two orders. The first, in September 2017, overruled the owner’s exceptions to the report and vested title in the Town. It expressly retained jurisdiction to allow the court to consider two ancillary matters, primarily relating to the disposition of the money deposited by the Town. In November, the court entered a second order that resolved those issues and closed to the file.
The owner appealed from the second order, perceiving that to be the final order in the case. The Town moved to dismiss, arguing that the September order was final and hence immediately appealable. Here’s a passage from the statute on which the Town relied: “The order confirming, altering or modifying the report of just compensation shall be final.” The owner replied that that may be true, but the trial court, exercising a right inherent in the courts, had postponed finality by retaining jurisdiction. He cited caselaw holding that the use of that exact phrase does keep the case alive and postpones finality.
Yesterday, the justices ruled, in a matter of first impression, that the “retain jurisdiction” doctrine doesn’t apply in eminent-domain cases. That’s because those proceedings are two-phase actions. The first phase deals with the take and just compensation, while the second resolves any disputes as to ownership of the funds. Because of this distinction and the statutory language, trial judges have no authority to postpone finality by retaining jurisdiction over the case, so any appeal must be taken from the award confirming the jury’s report, even while the parties may continue to litigate in the circuit court.
To my knowledge, this exception to the finality doctrine is sui generis; this is the only context in which an order that expressly retains jurisdiction does not postpone finality.
The David-Goliath Index
Today marks the end of the first quarter of the year, so it’s time to look back and see how the big guys and the little guys did over the past three months. In that time, the Supreme Court has issued published opinions and published orders in eleven appeals with what I consider to be identifiable David-vs.-Goliath features. In those, the court ruled in favor of our Davids three times and our Goliaths eight times, for a D-GI of 27/73. That’s statistically indistinguishable from the final figure of 31/69 from all of the appeals decided in 2018.
