Bricker said on December 15, 2009  

But aren't we maxing apples and mangoes here? You correctly point out that arguments addressing reasonable suspicion are not the same as arguments addressing probable cause, but don't highlight the fact that the two predicates which the suspicion and the probable cause are leading to are different. Reasonable, articulable suspicion is clearly a lower standard than probable cause. But the trooper had to be able to articulate his reasonable suspicions that the accused was armed and dangerous to justify a Terry frisk. And he needed probable cause to believe the accused was in possession of a controlled substance before searching him on that basis.

Now, the Commonwealth has- shockingly - argued implicitly that the mere smell of marijuana supports not only probable cause for the possession of marijuana, but reasonable suspicion that the individual is armed -- and, indeed, that he's also under the influence of PCP. Reasonable suspicion is a low bar, yes, but it does contain the word "reaosnable," which in my view scuttles those latter conclusions.

I the basic ground for distinguishing this case from Whitehead holds up. It's of no moment that the trial court didn't hear arguments about a different legal theory, since the appellate courts will review those questions de novo anyway. As long as the factual allegations don't change, as they did in Whitehead, the court's use of a different legal theory is kosher.

Where this goes off the rails is the assumption you give them a pass on: that no different evidence would be presented to the trial court for a Terry stop suppression as opposed to a probable cause search incident to arrest. The Terry stop focuses on weapons and officer safety; the probable cause on the possession of a controlled substance. Unless the couurt has taken judicial notice of the claim that pot smokers are per se violent, weapon-wielding PCP users, this assumption fails.

By the way -- I was the "Anonymous" commentator a few days ago on expungement, and am indeed a loyal fan. :)

 Bricker said on December 15, 2009  

So much for editing. I guess that's a lot of apples and mangoes we're "maxing." :(

 Ken Lammers said on December 16, 2009  

I gave the CoA a pass on the facts part because I think, whether the facts are different or not, the CoA badly misinterprets the opinion from the Supreme Court. The Supreme Court's opinion was based on whether or not the ARGUMENT was heard by the trial judge and then it also adopted the no argument based upon new evidence rule (I may have been unclear about this). I was disturbed by the CoA cherry picking the second part of the Supreme Court's ruling and choosing to ignore the first part.

 Bricker said on December 18, 2009  

Not to bludgeon an ailing equine, but...

...It seems clear that the general rationale of requiring that arguments be raised below -- the [i]raison d'etre[/i] of Rule 5A:18 -- is to give the trial court an opportunity to rule intelligently on the issue, which may or may not include making specific factual findings on mixed questions of fact and law.

When a party in front of the appellate bench offers an argument that wasn't raised below, the handicap suffered by the opposing party is obvious, and nicely articulated in [i]Whitehead[/i]: "Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible." Notice that while the sentence begins with the mention of argument, the gravamen is that Whitehead was unable to present evidence to permit factual findings that could have rebutted this new argument. Pure argument is not the key: the lack of any chance to adduce facts is.

And it's this aspect that the Court of Appeals fumbles egregiously in [i]Perry[/i], as I discussed above.

So I'm still in disagreement with you that [i]Whitehead[/i] stands for the proposition that pure argument, without an underpinning factual connection and made for the first time on appeal, can be discarded. It's true that [i]Whitehead[/i] appears to dispose of the constructive possession argument on those grounds, but look at the sentence that precedes the one you quoted:

"Both the constructive possession and concealment methods of proof require presentation of facts that would not be necessary under other methods of proof supporting conviction for receipt of stolen property. The Commonwealth clearly articulated its case for prosecuting Whitehead – constructive receipt. Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible." This clearly rejects the constructive possession argument not simply because it was never made at trial, but because, having not been made at trial, Whitehead had no opportunity to offer evidence to rebut the facts necessary to sustain a conviction for constructive possession.

Indeed, in Whitehead, the Supreme Court of Virgina quotes with approval Blackman v. Commonwealth, 45 Va. App. 633, 642-643, 613 S.E.2d 460, 465 (2005) ("...an appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not require new factual determinations.")

I'm sorry - am a big fan, but I think your reliance on argument as the lesson from [i]Whitehead[/i] is myopic. [i]Whitehead[/i] means new argument on appeal related to specific factual findings, the lack of which are fatal to new arguments on appeal.

 Ken Lammers said on December 29, 2009  

5A:18 doesn't apply to the appellee (usually the Commonwealth) because 5A:18 is about the appellant's preservation of the issue for appeal by objecting. The Commonwealth, which claims it was correct, has nothing to object to.

Reread Whitehead II.A. Go no further. You cannot get to Perry from there. It's based solely on the fact that "[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the [right result / wrong reason] doctrine." There is no mention of anything to do with the argument necessitating new or different evidence.

I agree with you that Whitehead II. B. is about whether the appellant had the opportunity to present rebuttal evidence & argument. However, it's of no moment that the Court pointed out that the argument in II.A. would have also been disposed of under this rule as well. The Court completed its analysis under II.A. Then it started a completely new section and rejection under II.B. Different sections, different rationales.

So, while I realize that the necessary new evidence rule clearly applies in the II.B. rationale, a plain reading of II.A. leads me to conclude that, absent a statement otherwise in II.A. or a future case from the Supreme Court that the failure to present the argument rule of II.A. is valid and conflicts with Perry.