20 January 2004

Police, acting on an unreliable informant, assault a car with guns drawn. A judge in Chesterfield County (a very, very conservative county1) finds this unconstitutional. The prosecutor appeals this to the Virginia Court of Appeals.

Ignoring the basic rule of appellate law that the appellate court must interpret the facts in the favor of the party prevailing below (or at least not adopt facts which the trial judge had to reject to rule as he did) the appellate court finds that despite the fact that the informant was not proven reliable and despite the fact that police without probable cause rushed a car with guns drawn, pulled the occupants out of the car, put them down on the ground and cuffed them (clearly unconstitutional) the evidence which came from the subsequent search of the car shall not be excluded.

Huh? How, you ask, did they get there? Entirely adopting the prosecution's interpretation of the facts, they made findings of FACT which were not made by the trial judge (clearly outside their purview). Then they say "So what if the arrest is unconstitutional? According to the facts, as we determine them, we don't care that it's illegal/unconstitutional because the officers would have had reasonable articulable suspicion and conducted a constitutional search of the car anyway."

Remember the discussion of whether 4th Amendment rights still exist if you drive your car and/or how a court will twist the law in order make certain evidence which should be suppressed will be introduced to make sure the guilty Defendant goes to prison? Well, here's the Defense attorney's nightmare: Commonwealth v. Fraierson.

1 A standing joke as to suppressed evidence cases coming out of Chesterfield is that the fact a Chesterfield judge found the evidence unconstitutional should, of itself, be a dispositive argument in the appellate courts. It's always interesting reading appellate treatment of Chesterfield cases because the trial judges are good at what they do and when they exclude evidence it is not often in a gray zone; it's clearly over the line. And the trial judges are well versed in 4th Amendment decisions because the Street Drugs unit in Chesterfield is extremely proactive and will push as far as the courts will allow it (and maybe just a little bit further). So the appellate courts really have to stretch to come in with pro-prosecution decisions.

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