Your humble correspondent took a lengthy 4th of July weekend and so must play catch-up on reporting on the recent output of the Virginia Court of Appeals. However, as that output, at least as to published opinions, is a total 1 for the last two weeks, it's not that onerous a task. That opinion probably didn't make the evening news as it involved the affirmance of the denial of a motion to suppress and an arcane procedural issue. However, an unpublished opinion released today has at least the potential to make headlines.
The published opinion from July 2, 2024 is Joseph Franklin Sechrist v. Commonwealth of Virginia. The merits of the appeal relates to a search during a well being check that resulted in police discovering illicit drugs. Before reaching the merits, however, the Court is confronted with a procedural challenge by the Commonwealth, which asserted that the Court did not have jurisdiction to hear the appeal because the circuit court had deferred disposition pursuant to Code § 18.2-251, but subsequently entered an order on a pre-printed form that referenced Code § 19.2-298.02.
Why is this distinction important? Because under the later statute, a defendant must waive his right of appeal to receive the deferral. Unfortunately for Mr. Sechrist, regardless of which statute he was deferred by he failed to meet the terms set by the trial court and was sentenced to 2 years in prison, and it was the entry of that order that triggered the appeal period presuming he was entitled to an appeal.
The Court of Appeals, Judge Friedman, joined by Judges Chaney and Lorish, find that Sechrist does indeed have a right to appeal. The record plainly shows that the Commonwealth, Sechrist and the trial court discussed deferral under Code § 18.2-251, and never discussed Code § 19.2-298.02. The panel concludes that the entry of the order and the pre-printed form was a clerical error and remands the case for correction of that error.
But only for correction of that error. On the merits, the panel affirms the denial of the motion to suppress. Sechrist's mother called police concerned that her son was suicidal. There is no question that police were invited into the home and that Sechrist agreed to speak with them. Sechrist was armed with a knife and willingly surrendered that weapon. Officers then noted he had a hard bulge in a pants pocket and, concerned that this could be a weapon. The object was a sock wrapped around a hard metal device. Before police looked into the sock, Sechrist volunteered that the metal device was a "crack pipe" he had found on the side of the road.
Then Sechrist did something inexplicable to my mind (but I often find the actions of criminal defendants inexplicable). He voluntarily handed one of the officers a "sunglasses bag" from another pocket. Inside this bag was the illicit drugs. At the point Secrist handed over the bag, the police had seemingly satisfied themselves that Sechrist was not armed. Certainly the bag, unlike the metal crack pipe, did not give the appearance of containing a weapon and there was no indication that police intended to seize or search the bag.
Sechrist argued that the nature of the encounter was coercive and that he had been unlawfully seized, meaning that the "search" of the bag was improper. To resolve this issue, the Court assumes that the entire encounter was not consensual -- a very generous concession I think under the circumstances. Nonetheless, the Court concludes that each stage of the officers' interaction with Sechrist fell within the permissible bounds of limited searches without a warrant.
First, the encounter began as a well-being check and Sechrist was armed. This was sufficient to give the officers a legitimate concern that he was potentially a danger to himself and others. Although Sechrist voluntarily surrendered the knife, this did not dispel the reasonable concern that he might not have another weapon, and the patdown limited to the obvious bulge was proper.
Once Sechrist admitted that the bulge was a device used for smoking illicit drugs, although Sechrist claimed his possession of the device was innocent, the police had a heightened suspicion that Sechrist might be using or in possession of drugs. Thus, the Court concludes that the minimally invasive search of the sunglasses bag was reasonable.
But why even go this route? The bag was not seized during a pat-down search for weapons, or one for drugs. It was freely handed over to the officers and, I would argue, that when a person freely hands over a closed object to police there is an implicit permission to inspect the contents. Perhaps the Court was concerned about making such a ruling, but I would argue that the whole encounter was consensual and that Sechrist's handing over the bag without any prompting from the officers just couldn't rise to the level of an impermissible search.
Now, about that unpublished opinion that I think will make headlines. The opinion actually arises from cross-appeals by Under Wild Skies, Inc. and the National Rifle Association of America. I was present in the Court when this case was argued and there was quite a bit of high drama that started when the Court advised the NRA that its out-of-state counsel was not going to be allowed to argue because the pro hac vice admission fee had not been paid despite the Clerk having advised local counsel that this would be a problem. NRA's local counsel was gobsmacked by the prospect of having to argue the case as they clearly were not prepared -- and also had been assured by "someone" that the fee had been, or was going to get, paid. The Court graciously allowed a brief continuance while the attorney hurriedly contacted their firm and got the fee paid.
Wonderful word, gobsmacked. We should use it more often. Despite its relationship to Irish and Gaelic, gobsmacked (and the less common gobstruck) are actually of fairly recent origin, first attested to in print in 1935 and not popularized until much later in the century when it was used in television programs in England to indicate a Liverpudlian, which is another great word. But I digress.
Under Wild Skies was a television production company which had a contract with the NRA to produce a television program that, let's be frank, was really an excuse to send NRA executives and high dollar donors on safaris. Among the guest stars on episodes who were treated to luxury expeditions to hunt lions and tigers and bears, oh my! Not to mention elephants and elks and all manner of creatures great and small were NRA's Chief Executive Wayne LaPierre, his wife Susan LaPierre, Oliver North, gun manufacturer Lee Colquitt, Tyler Schropp (another NRA bigwig and former executive with the NRA's then PR firm Ackerman McQueen) and others. The series erred on NBC for a while and later on NRATV.
The shows producers and the host were close associates of LaPierre and also with the with Ackerman McQueen executives. Now, I am going to make an assumption that you, dear reader, our starting to recall that things between the NRA and Ackerman McQueen hit a proverbial bump in the road when some members of the NRA's Board of Directors questioned the large amounts of cash flowing out of the NRA's coffers and into the expense account of Ackerman McQueen and from thence, it was alleged, to the benefit of certain Ackerman McQueen and NRA executives. Oliver North, for example, was hired to be the NRATV host for a cool million.
Eventually, the NRA cancelled to contract with the producers of Under Wild Skies. Under Wild Skies brought suit in Farifax County, where the NRA is headquartered, and the NRA countersued, each claiming breach of contract. This resulted in a six-day jury trial with Under Wild Skies being award $550,000 -- far less that it wanted, but far more than the NRA thought it deserved. Both sides appealed.
I shall not delve into the details of the various arguments and their swift and succinct resolution by Judge Athey, who is joined by Judges Causey and Collins, in an opinion of just over 12 pages. A masterful feat given the size of the record (not to mention the egos of the principals). It should be sufficient to say that neither party will be happy with the result. The NRA gets no relief, and Under Wild Skies will have to make due with the $550,000 award fromm the jury.
There is one quote that I did find interesting: "On brief, NRA claims that the jury could have only reached the verdict they did by crediting certain testimony by Makris [the program's priducer, host, and former LaPierre BFF], which NRA then argues was incredible." Yeah, those crazy jurors will believe anything!
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