A Mixed Question of Law and Fact
It was a bad week for criminal defendants at the Court of Appeals this week. The Court issued a total of seven unpublished opinions on Tuesday, and all of them went in favor of the Commonwealth. Although most of the challenges were fairly straightforward “sufficiency of the evidence” appeals that went the way you would expect, one was a very interesting exploration of one of my favorite issues: a motion to suppress evidence.
The case is Commonwealth v. Noaks, a rare Commonwealth’s appeal in a criminal case. Such appeals are only allowed in a few specific circumstances defined in Va. Code § 19.2-398y, one of which is a pretrial appeal of a court’s order granting a motion to suppress evidence. The thing that makes this case particularly intriguing is the reason for the Court’s decision to reverse the trial court’s ruling.
As always, I begin my discussion of the case by pointing out the standard of review: Suppression decisions are reviewed as a “mixed question of law and fact.” Accordingly, the Court of Appeals views the evidence in the light most favorable to the prevailing party below (in this case, the defendant) and as always they will defer to the trial court’s factfinding and only reversed if it is “plainly wrong or unsupported by the evidence.” Malbrough v. Commonwealth, 275 Va. 163, 168 (2008). The trial court’s application of the law (i.e. the Fourth Amendment and relevant case law) is reviewed de novo, Sharpe v. Commonwealth, 44 Va. App. 448, 454 (2004). Most of the time in cases like these it’s the legal conclusions that generate the argument, soak up most of the argument time, and form the basis of the Court of Appeals’ decision. Not so in this case.
The facts in the case were established by testimony and body-cam footage from a police officer. In the course of an investigation of reported drug activity, the officer arrived at the door of an apartment and knocked. After entering (on grounds that were not challenged), the officer found the defendant (Mr. Noaks) asleep in a bedroom with a bag of marijuana and a pill bottle on the nightstand next to him. The officer asked the defendant to move to the living area, where he sat with two other adults.
The officer found methamphetamine in the living area near one of the other adults, who he arrested and escorted out of the apartment to his squad car. Upon his return, the officer noticed that the window in the bedroom where he had found the defendant was now open, and the pill bottle was missing from the nightstand. He looked out the window, saw a similar-looking bottle on the ground, and had another officer secure it. That bottle was later determined to have the defendant’s name on it, and also contained methamphetamine. The person who leased the apartment was not at the scene throughout these proceedings, and the officer never obtained a search warrant at any point. Noaks moved to suppress all evidence seized as a result of the officer’s entry and search of the apartment.
To even assert this challenge, Noaks first had to establish that he had some kind of connection to the apartment because the 4th Amendment grants personal rights that cannot be invoked on behalf of others. 4th Amendment case law says that not every person present in a dwelling when it is searched can challenge the legality of that search. An overnight guest in someone else’s house may have a reasonable expectation of privacy in that place sufficient to invoke 4th Amendment protections, but one who is merely present (even with the consent of the homeowner) does not. Minnesota v. Carter, 525 U.S. 83, 90 (1998). Accordingly, the trial court’s factual findings that Noaks was a “friend” of the person whose name was on the lease, and that Noaks was using the apartment as a “place of rest in the middle of the day” were crucial to his legal challenge. Unfortunately for Noaks, this factfinding was where the Court of Appeals found error, even after viewing the evidence in the light most favorable to him. .
The evidence presented at the suppression hearing established merely that the search took place in the middle of the day, the person whose name was on the lease for the apartment was not present at any point, Noaks was asleep in a bedroom at the time the officer entered the apartment, there was no luggage, clothing, or other personal effects in the bedroom where Noaks was found, and Noaks made no comments to the officer about living in the apartment or about staying there as a guest of the occupants. No testimony or other evidence was introduced on the question of whether Noaks knew the person who leased the apartment, whether Noaks had been invited to stay there, how long he had been there, how long he intended to stay, or even how Noaks came to be in the apartment in the first place. As the Court of Appeals noted, the record was “devoid of evidence…to suggest that [the defendant’s] presence was intended to last more than a short, non-overnight period.”
Any time the Court of Appeals uses language like “devoid of evidence” when describing its review of the record, the trial court’s factual findings are in jeopardy. That is pretty much the definition of “unsupported by the evidence.” In this case, the Court of Appeals concluded that the trial court’s finding of fact that Mr. Noaks was “a person utilizing a friend’s apartment as a place of rest during the middle of the day” was wholly unsupported by the evidence. There was no evidence that the defendant even knew person whose name was on the lease, much less that they were “friends” or that the defendant was seeking “a place to rest during the day” (as opposed to “seeking a place to score some meth”). Because there was no evidence in the record to support the trial court’s factfinding related to Noaks’ connection to the apartment, the Court of Appeals determined that it was an error of law for the trial court to apply 4th Amendment protections and thus also an error of law to suppress the evidence. They reversed the suppression order and remanded the case for the trial to go forward with all of the evidence the Commonwealth wanted to use from that search. My prediction: the case will likely plead out, unless the defendant has some other significant card to play.
The opinion includes a much more detailed explanation of the 4th Amendment jurisprudence that applied to the case. The big takeaway for the average person is to remember that your 4th Amendment rights protect you against an unreasonable search of your person wherever you are, but they do not protect you against an unreasonable search of a place where you might be “hanging out” for a short time during the day, absent some other significant connection between you and that place that would give rise to a “reasonable expectation of privacy.” It’s an intriguing Constitutional issue and one worthy of an entire blog post of its own. I found this case particularly interesting because of the unique circumstance where the Court of Appeals applied the “mixed question of law and fact” standard, but reversed the lower court based on their factfinding rather than on their application of the relevant law. That does not happen often.