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Hands up motherfu**er, this is a consensual encounter!

May 9, 2018

I used to have a ritual of reading the new Court of Appeals of Virginia (CAV) opinions every Tuesday afternoon in my office with a hot cup of coffee.  Nowadays I scan them once a month or so, and I need something a lot stronger than coffee to make it through. The CAV has all the drama of a Harlem Globetrotters game with the AG's office bouncing the ball off the heads and through the legs of the hapless defense bar’s Washington Generals.  

 

 

I checked the results for 2018. Druuuuuumroll. I counted 65 written opinions in appeals by criminal defendants. There has been exactly one reversal of a criminal conviction and it was for misdemeanor reckless driving (kudos to Rossie “Bad Boy of Appeals” Alston). Assuming a granted petition rate of about 10%, the government has won 99.85% of the time.  To add an extra kick in the nads, the CAV has reversed 4 defense victories on motions to suppress on Commonwealth's appeals. That’s just cold man.

 

 

 

Of all of those written opinions, the published opinion Hill v. Commonwealth stands out above the rest.  In Hill, the dastardly defendant was legally parked in a black Lexus minding his own business at 2:30 in the afternoon.  Officers approached him based on a hunch (by their own admission!) that he was clearly up to no good. As the officers approached, Hill reached down between the front seats prompting the officers to demand that he show his hands.  After failing to comply, Hill was forcibly dragged from his vehicle and handcuffed. The officers then searched his car and found bad illegal things.

 

Isn’t it illegal to drag people from their cars for no reason? Get that weak shit out says the CAV! This was just a super consensual encounter until after the police developed reasonable suspicion of criminal activity based on Hill’s refusal to show his hands.

 

 

 

I just can’t wait to see Hill v. Commonwealth in action at future motions to suppress:  

 

Judge: Please call your first witness.  

 

Assistant Commonwealth: I call Officer Brock Nightstick.  

 

Officer Nightstick:  On or about March 15, 2018, I was driving my marked vehicle through a high crime area.  

 

Defense Attorney: Objection! Lack of foundation!

 

Judge:  Officer Nightstick, please explain how you know this to be a high crime area.  

 

Officer Nightstick:  I’ve seen many terrible things in this neighborhood.  Bloods riding bicycles on the wrong side of the road. Crips double parked.  And even juggalos walking dogs without a leash.

 

Judge: Objection overruled.  Proceed.

 

Officer Nightstick:  I saw a man sitting suspiciously in a BMW. His eyes were shifty and his hair looked disheveled.  As I approached, he began reaching toward the floorboard area with his hands.  

 

Assistant Commonwealth:  In your training and experience, what was the significance of him reaching with his hands?  

 

Officer Nightstick:  Hands are frequently used to clutch and shoot guns.  

 

Assistant Commonwealth: In your training and experience, are hands often used for other purposes?  

 

Officer Nightstick:  Yes, holding crack pipes.  

 

Assistant Commonwealth:  Based on your observations, what actions did you take?  

 

Officer Nightstick:  I commenced a consensual encounter by opening the vehicle door and escorting the driver to the ground.  

 

Assistant Commonwealth:  Did you raise your voice?  

 

Officer Nightstick:  Of course not, I’m not an animal.  My tone was friendly and conversational throughout the encounter.  

 

Assistant Commonwealth:  What happened next?

 

Officer Nightstick:  The gentleman’s reaction was highly suspicious, and he began wildly thrashing his body in a very non-compliant manner.  

 

Assistant Commonwealth:  Based on your reasonable suspicion, what did you do next?  

 

Officer Nightstick:  I conducted a compliance rub to his face and ribs and placed him in handcuffs for an investigatory detention.  

 

Defense Attorney:  Your honor! This is a clearly a violation of my client’s 4th Amendment rights!

 

Judge:  I’ll hear no more of this squawking about rights.  Have you not read the learned words of the CAV in Hill v. Commonwealth?

 

It’s very hard to win motions to suppress.  The single biggest reason is that the police always found something illegal. Otherwise, you wouldn’t be in court. It’s easy to fall into the trap of an ends justify the means mentality.  The problem is that the court’s seal of approval in a case like this has implications for many, many perfectly innocent people.  The police are being told that it’s A-Okay to yank anybody out of their vehicle whenever they want, and a lot of innocent people are going to suffer.  I wonder who is going to bear the brunt of this approach to policing endorsed by the CAV?  I think it's safe to say that it won’t be people in the neighborhoods populated by appellate judges.


 

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