13 May 2004

And So It Ends . . .

You'll recall the case which I have had for a while now involving a search which I argued was unconstitutional. Here's the brief for the Circuit Court, and here's my reply brief to the prosecution's petition for appeal, and finally here's the Court of Appeal's answer:

In the Court of Appeals of Virginia on Wednesday the nth day of Month, 2004.

Commonwealth of Virginia,

JoAnne Smith,

From the Circuit Court of Somewhere County
Before Judges Brown, Black and Senior Judge Green

This petition for appeal is denied for the following reasons:

1. On appeal, the Commonwealth contends the trial court erred in granting the motion to suppress the evidence found on appellant's person. The Commonwealth argues the drug dog's alert upon appellee, although misunderstood by the police officer, provided the police with probable cause to search appellee. The Commonwealth did not advance this argument in the trial court, however. At the suppression hearing, and in its brief opposing the motion to suppress, the Commonwealth contended the drug dog's alert on the passenger, coupled with the passenger's admission he had been around someone who was smoking marijuana that day, justified the search of appellee's vehicle, and the discovery of contraband in the vehicle provided probable cause to search appellee.

"The Court of Appeals will not consider an argument on appeal which was not presented to the trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18. See Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978) (appellate court will not consider an argument on appeal that is different from the specific argument presented to the trial court, even if it relates to the same general issue). Accordingly, Rule 5 A: 18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.

2. Code § 19.2-398(A)(2), which is in derogation of the general prohibition against appeals by the Commonwealth and must be strictly followed, requires the Commonwealth to certify "that the appeal is not taken for purpose of delay and that the evidence is substantial proof of a fact material in the proceeding." The Commonwealth has failed to make that certification.

It is ordered that the trial court allow counsel for the appellee a fee of $400 for services rendered the appellee on this appeal, in addition to counsel's costs and necessary direct out-of-pocket expenses.

A Copy,

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