The Virginia Court of Appeals Overrules the Virginia Supreme Court on Whitehead

A while back the Virginia Supreme Court came out with an opinion about the "right result / wrong reason" doctrine wherein it stated in language plain for all to see:

Whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases 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 doctrine.

Whitehead v. Commonwealth was a case wherein the Supreme Court (1) rejected as plainly wrong the findings of the trial court and the court of appeals that a person could be convicted of receiving stolen goods when she received benefits from a third party's theft and sale of goods (boyfriend paying her rent, etc.).

(2) Then it dealt with the Commonwealth's assertion that Whitehead was still guilty because she was in constructive possession of the stolen items (they were stored in her apartment). The Supreme Court rejected that argument with the reasoning above which basically boils down to "The right result / wrong reason doctrine does not apply to uphold a conviction if the ARGUMENT was made for the first time on appeal and the trial judge was never given the opportunity to rule on the ARGUMENT."

(3) Finally, the Supreme Court dealt with another argument the Commonwealth presented first during the appeal: concealment as proof of participation. This the Supreme Court rejected this argument by (a) first adopting the rationale that it had under constructive possession argument

Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead's convictions.

and then it moved into an area which the Court of Appeals had previously addressed. The Supreme Court noted with approval prior Court of Appeals cases which had held the rather commonsense position that (b) an appellee cannot argue on appeal a position which would require evidence which had not been provided during the trial. In fact, it takes the Court of Appeals doctrine one step further.

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.

In making this determination, the Supreme Court discussed how this applied to both the constructive possession argument and the concealment argument.

So, in the end, the Supreme Court ruled that an appellee's new argument couldn't be heard when first raised during the appeal because (1) the trial judge had no opportunity to rule on the new argument and, (2) if the Commonwealth tried to prove its case via one method of proof it cannot offer another method of proof in the appeal because the defense attorney had no opportunity to rebut the new method in the trial court.

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Comes now the Court of Appeals.

In Perry v. Commonwealth the Court of Appeals is faced with the Commonwealth making a probable cause argument instead of the reasonable articulable suspicion. The Court of Appeals "assume without deciding" that the trial court got the reasonable articulable suspicion decision wrong. Then it moves on to the right result / wrong reason doctrine and Whitehead. It specifically quotes the first part of the Supreme Court's rationale

The Supreme Court refused to consider this new theory of guilt offered by the Commonwealth, stating "[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 doctrine."

Then comes the all important word of the new opinion

Nevertheless

Then the Court of Appeals goes on to decide

Whitehead, contrary to the appellant's claim, applies only when the new argument made on appeal involves a consideration of factual findings that the trial court never reached, rather than application of a different legal theory to facts already considered by the trial court.

Following this, the Court of Appeals rules that since both reasonable articulable suspicion and probable cause are 4th Amendment issues and arguing one 4th Amendment issue at trial suffices to preserve other 4th Amendment issues arising from the same acts.

We find that this case presents an appropriate situation for the application of the right result/wrong reason doctrine. . . . [T]he parties here were aware at all stages of this case that the courts would look to the Fourth Amendment to determine if Trooper Weidhaas’s actions were appropriate - regardless of whether the question involved probable cause or reasonable articulable suspicion.

It then goes on to uphold the search based upon a reason never argued in the trial court.

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Of course, this is, as even the Court of Appeals obviously noted, contrary to the holding in Whitehead. This argument was never made before the trial judge and therefore never allowed the trial judge to an opportunity to rule on it. Thus it fails the first part of the Supreme Court's decision.

As to the second part of the Supreme Court's decision, it's obvious that the appellant never had the opportunity to rebut this different argument in the trial court. An argument never made in the trial court isn't even presented for a defendant to rebut. Yes, they both fell under the umbrella of the 4th Amendment, and I'll "assume without deciding" that no different evidence would have been presented had the new argument been made. Still, the arguments which would be made as to whether an arrest was legitimate under the 4th Amendment are far different from the arguments made as to whether there was reasonable articulable suspicion. The standard of a Terry pat down and the facts which justify it are more easily met than probable cause. A defendant arguing against probable cause for an arrest is definitely going to be making different arguments than a defendant arguing against reasonable articulable suspicion. The one saving grace here for the Court of Appeals is that while this part is wrong it would probably be held to be harmless error.

Hopefully, the Supreme Court will take this case and decide whether it will alter its decision to come into compliance with the Court of Appeals or overrule the lower court. If it doesn't do it with this case the Supreme Court will have to face this issue at some time in the future because every time the Attorney General's office and the Court of Appeals use Perry the obvious appeal to the Supreme Court will be based on Whitehead.