It’s Not Often You See a Court Referring to A Fairytale for A Legal Point
When I began this blog about a month ago, I promised that would from time to time reach back to review opinions of the Court of Appeals from before that inception date when I had the time and felt that there was something of note. I must confess that what originally caught my eye about Stephen Raymond Saal v. Commonwealth of Virginia, a decision from October 2020 from the Circuit Court of the City of Virginia Beach was not an issue of significant import for the bar, but as it turned out there was an important lesson to be learned and, so, I feel doubly justified in bringing this case to your attention. What originally caught my eye was the somewhat unusual occurrence of an appellate court citing a fairytale to make a legal point — but I get ahead of myself. Let us begin at the beginning, shall we?
Officers investigating a report from an off-duty officer of erratic driving went to the address at which the vehicle was registered, identified the vehicle including confirming damage reported by the off-duty officer. After receiving no response at the front door of the home, an officer noticed that a light was visible through a side door of the home which could be reached on a pathway from the driveway and did not require passage through a gate or exterior structure to reach the door. The officer went to the side door, knocked and Saal opened the door. It was approximately 12:30 AM. The officer identified himself and proceeded to question Saal about the vehicle. When told that the vehicle was damaged, Saal voluntarily left the home to examine the vehicle. Saal was subsequently arrested on suspicion of DUI.
Saal filed a motion to suppress his statements, contending that there was no implicit invitation for the police to enter “the curtilage of his home to gather information pertaining to a criminal investigation during pre-dawn hours by conducting a ‘knock-and-talk’ without a warrant.” The circuit court overruled the motion and Saal entered into a conditional plea agreement preserving his right to appeal the suppression issue. The Court of Appeals affirmed the decision, noting that while police entry on to the curtilage of a private residence is presumptively unreasonable without a warrant, the “knock-and-talk’ exception to this presumption is well-established.
Saal conceded as much but contended that the implicit invitation to entry uninvited on to his property was “time-sensitive.” Without suggesting that any specific time would be “too late,” he contended that the “pre-dawn” entry by the officers was unreasonable. This notion is not so far-fetched as it seems, finding support in dicta from the late Justice Antonin Scalia no less in the case of Florida v. Jardines, 569 U.S. 1 (2013). In his dissent in that case, Justice Scalia did posit that the implied invitation to approach a front door of a private residence does not mean that an unexcepted guest may do so “in the middle of the night.”
The Court of Appeals, however, did not see that there was a need for a hard and fast rule that would declare – and one must appreciate the literary allusion here – that “the implied invitation for a visitor to knock on a door, like Cinderella’s coach turning back into a pumpkin at the stroke of midnight, ceases to exist” at a specified time and resume at some later time. Rather, the Court reasoned that as with most such mixed questions of law and fact “requires a review of the surrounding facts and circumstances and is not subject to a hard and fast, bright-line rule.”
Although Saal had suggested this was an issue of first impression, it was not. The Court had addressed a similar claim in 2006 in Robinson v. Commonwealth, an en banc decision subsequently affirmed by the Supreme Court of Virginia. Robinson was a fairly celebrated case as it involved a professional couple in the Charlottesville area who hosted a “kegger” for their sixteen-year-old son and his friends, thus is somewhat surprising the Saal’s counsel did not find this case and attempt to distinguish it – for it would have been easy to do so by noting that the exigent circumstances in Robinson were far more suspicious (indeed, open and obvious).
It is doubtful that this argument would have gained much purchase with the Court of Appeals, but at least it would not have left the appearance that counsel had not adequately researched the issue. In any event, the Court instead applied the factors it had set out in Robinson – the time of the approach, whether the officer’s approach was open or clandestine, whether the officer confined himself to the driveway and associated pathways where the general public would be expected to go, whether lights were on, and whether cars outside the residence suggested the presence of people – and concluded that under the totality of the circumstances the officer’s “knock-and-talk” encounter with Saal was not unreasonable. The Court added by way of a footnote that it also viewed the evidence as sufficient to support a welfare check on the driver given that it would have been objectively reasonable for the police to believe that observed manner in which the car was drive and the damage thereto raised the possibility that the driver or another occupant might have been injured.
The important point for the appellate practitioner (or, for that matter, any attorney attempting to interest a court on a point of law) is that the words “issue of first impression” are not as flexible as we would often like them to be. In one regard, every issue that comes before a court at the trial or appellate level is an “issue of first impression” if double jeopardy and/or res judicata are to be avoided. But when used in the context of a legal argument, it has a more exact meaning — it is an assertion by counsel that following a diligent search of the relevant legal precedent counsel is of opinion that the court in which the argument is presented, and no other court whose decisions are binding on that court, has ever addressed the issue or anything remotely like it. Whether it was the Commonwealth or the Court of Appeals that first recognized that Robinson was not merely similar to, but from a legal standpoint, controlling on this issue, the result was that Saal’s counsel did not adequately research the issue before claiming it was a first impression. If you think this criticism is unduly harsh, let me simply point out that the first case that comes up in a CALR search for “knock-and-talk” in Virginia is, you guessed it, Robinson. You cannot wish away inconvenient precedent, and you shouldn’t try to do so.