The VLW Blog

Arlington County Circuit Judge Joanne Alper ruled that there was no 4th amendment violation when, without a warrant, police attached a GPS tracking device to a suspect’s van and followed his travels around the community.

According to the Arlington Connection, the judge will allow the GPS tracking data as evidence against a man charged in a series of sexual assaults in Fairfax County.

Defense lawyer Chris Leibig argued that the police violated the defendant’s rights against illegal search and seizure when they placed the GPS device on his van without a warrant and without any predetermined limitations on what type of information they were looking for.

Judge Alper said, however, “The defendant has failed to show that there has been any actual invasion of his privacy.”

A jury trial is scheduled this fall.

By Peter Vieth

Lawyers who follow the 4th U.S. Circuit Court of Appeals know the Richmond-based court is not generous with published opinions.

According to a cover story in the June 2008 ABA Law Journal, the court, which has been short-handed for years, issued the lowest percentage of published opinions of all federal circuits in 2006 – 6 percent vs. 16 percent for the average of all circuits.

One academic study of appellate courts has suggested that appellate judges’ ideological preferences are different in published and unpublished opinion; judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions.

So it may pay to track that vast shadow world of unpublished opinions. At least that’s our intro to a round-up of recent unpublished decisions of interest to Virginia lawyers:

* Cop Can Check Car Exhaust System. A Waynesboro police officer could stop a car to check for an illegally altered exhaust system, based on what the officer heard. When the officer could still hear the muffler rumbling from 70 feet away, it didn’t matter that he stopped the car before he could see whether the driver had altered the factory muffler. The 4th Circuit said in its July 7 opinion in U.S. v. Cousins that any mistake by the officer in guessing the cause of the exhaust noise did not eliminate his “reasonable and articulable suspicion” that the exhaust system violated Va. Code § 46.2-1049, and the guns and drug residue need not be suppressed.

* Attorney’s Fees On Late Petition. In its June 16 decision in Gaskins v. BFI Waste Services LLC, the appellate court vacated an award of $427,374 in attorney’s fees and costs to two men who won their race-based Title VII hostile environment case against BFI Waste Services, holding that Alexandria U.S. District Judge Gerald Bruce Lee had no authority under FRCP 6(b) to sua sponte extend the time for the plaintiffs to file their fee petition.

The court said that on remand for consideration of “excusable neglect,” the district court would have to weigh the plaintiffs’ option of a malpractice action against the lawyers who had won their “difficult and time-consuming case” and to whom plaintiffs already had paid $240,000 in fees, against BFI’s expense for appeal of the fee award that could have been reviewed two years ago.

* No Breach Of Real Estate Contract. A buyer got his $100,000 deposit back when the 4th Circuit reversed judgment for the seller of a Spotsylvania County tract in a million-dollar deal that fell apart at the closing table. According to the June 12 decision in Herder v. Simms, the Alexandria federal district court erred in holding that, by waiting until the parties were at closing to raise title defects, the buyer had waived the defects and had to close or breach the contract

* Feds Not Bound by Numbers in Letter. A letter from a federal prosecutor trying to sell a drug defendant a deal for “15 years instead of 65” was cold comfort for the defendant after his guilty plea and sentence of 26 years. In U.S. v. Morgan, the standard merger clause and other terms in the written plea agreement, plus the defendant’s responses in court, supported the longer sentence. But in its July 3 decision, the 4th Circuit did remand to the Roanoke U.S. District Court for resentencing under U.S. v. Booker.

By Deborah Elkins

For suspects who weren’t sure, you have no privacy interest in the way you smell.

The Virginia Court of Appeals didn’t have to hold its nose to embrace the “plain smell” doctrine, which gives cops the right to go into your pockets if you smell like marijuana.

“While some have questioned our willingness” to embrace the doctrine, sniffed Judge D. Arthur Kelsey in Bunch v. Commonwealth, it’s clear to the court that an individual “has no privacy interest in his odors. He cannot broadcast an unusual odor” and “reasonably expect” others to take no notice.

“We concur with the accepted view that there is no reasonable expectation of privacy from lawfully positioned agents with inquisitive nostrils,” Kelsey quoted in the court’s published opinion April 8.

So be careful who’s standing downwind.

Our DC-based colleague over at Lawyers USA, Kim Atkins, was down at the U.S. Supreme Court today, listening to argument in a case from Portsmouth, Virginia v. Moore.

It’s a search case that has already been through the Supreme Court of Virginia, where the defendant prevailed.

But 18 attorneys general from other states have backed the Virginia authorities in the case, even if the ABA and the NACDL are supporting Mr. Moore.

Justice Antonin Scalia, in a line of questions for Stephen McCullough, the deputy solicitor general appearing on behalf of the commonwealth, played “what if.” He asked what if he had a neighbor near his home in McLean who was growing dope and what if he conducted a search on behalf of the commonwealth.

Check out the DC Dicta post to see just how far Scalia took this one.

Home is not where your Nintendo is, according to the 4th U.S. Circuit Court of Appeals.

Two men who sold cocaine together in Huntington, W.Va., were more than business partners. Joshua Gray and Terrence Askew hung out together at Gray’s apartment, watching TV and playing video games. Askew even kept a change of clothes and a toothbrush at Gray’s apartment.

But the business relationship was paramount, according to the 4th Circuit in its July 2 decision in U.S. v. Gray. Because the buddies also spent their time selling cocaine base from the apartment, Askew had no reasonable expectation of privacy in the apartment.

That meant that when police pushed their way into Gray’s apartment on July 3, 2003, in response to a neighbor’s complaint about the drug dealing, they could not use the drugs and drug paraphernalia spread out on tables in the apartment against Gray, but they could use the drug evidence against Askew, who had no standing to contest the illegal search.

Writing for a panel majority, Judge J. Harvie Wilkinson III declined to “create a toothbrush or Nintendo rule that would inflexibly mark a relationship as social in the face of testimony of extensive drug operations, replete with scales, large amounts of cash, neighborhood complaints and multiple customers.”

Wilkinson also said the district court was entitled to reinforce its view of the defendants’ business relationship with information from a presentence report.

Judge M. Blane Michael dissented with a lengthy critique of the majority for becoming “the first court to hold that facts from a defendant’s sentencing investigation and proceeding may be used in deciding a suppression appeal.”

To an experienced narcotics detective, a dollar bill folded in a certain way can only mean drugs. A defense lawyer tries to get the fact-finder to see other possibilities.

In Snell v. Commonwealth, police found a folded-up dollar bill in the wallet of a runaway kid. Unfolding the bill, which contained cocaine, was an unlawful search, his lawyer claimed. But the Court of Appeals, in an opinion written by Judge D. Arthur Kelsey, upheld the search.

Narcotics detectives are trained to recognize the “peculiar nature” of a tightly folded buck as a “characteristic method of packaging narcotics.”

Kelsey knows the value of a rhetorical device, and that a little hyperbole can go a long way. “In theory,” Kelsey wrote, someone might manipulate a dollar bill in this manner simply for the origami fun of it.”

But as a practical matter, the little bitty bill, together with the boy’s flight and his tossing something from his pocket, allowed the cops to unfold the bill and seize its cocaine contents.