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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Just the Facts, Ma’am . . . If a Court of Appeals Opinion Puts You in Mind of Dragnet, You Jus

As this post’s headline intimates, when I began reading the sole published opinion of the Court of Appeal today, I immediately harkened back to an episode of Dragnet.  Now let me be clear that I am not old enough to remember the radio version of the franchise or even to have seen the original run of the first television series.  But I did see the first revival in first run and the original in repeats.  So what was it about the opinion that sent me down nostalgia lane?  I recall fondly an episode in which the primary investigation revolved around con-men posing as detectives and setting up marks with a bogus call-girl service which the “cops” would then reveal to be a sting operation.  The mark would be offered a chance to pay a hefty fine to avoid being arrested for solicitation.

Now, you have to remember that this was in the days before ATMs, and the con-men obviously didn’t want to take a check made out the the LAPD.  The mark had to come up with cash, so the mark usually had to go with one of the “cops” to a liquor store to cash a check (the store owner was in on the scam and charged a higher than usual fee to cash the check), then go back to the hotel to pay the “fine.”

Friday and Gannon were put on the case and set up their own sting, except when the “cops” told Gannon (playing the mark, of course, no one would believe Joe Friday would need to pay for it) the amount of the fine, he said he didn’t have that but his brother-in-law (Friday) could lend him the money.  The kicker was they had to meet in front of the police headquarters so the brother-in-law would know it was “legit” and also asked the con-cops to tell Friday it was a fine for DUI because “he won’t have any trouble believing that.”  You can probably guess the end of the story (except for the outro where we learn the sentences of the bad guys) — as soon as the con-men arrived at the station they were arrested (while other officers had already grabbed up the “call girl”).  Two fellow detectives asked Friday and Gannon how they were able to arrest the perps right in front of the station, Friday replied, “It was easy.  They just made one mistake.” <Dramatic pause for inquisitive look from other cops> “They thought they worked here.”  Dun-Da-Dun-DUN!

Which brings us to William Joseph Morgan v. Commonwealth of Virginia in which the trial court found Morgan guilty of impersonating a police officer and carrying a concealed weapon while intoxicated.  What makes this a particularly unusual opinion is that the appeal was limited to two issues that rarely make the Court of Appeals look beyond the one-judge order — sufficiency of the evidence and abuse of discretion in admitting evidence.  I would like to think that this one made it to the merit stage for some reason other than to give the judges a good chuckle, but I will let you judge for yourself.

Our tale begins with our own Friday and Gannon of the Virginia Beach PD, Detectives Otranto and Bryant observing an undercover vehicle.  It was the right model (Crown Vic), had the right styling, the right markings, the right vanity plate . . . wait, what?  Yep, it had a vanity plate that read “SPC-COP.”  As the court says, the presence of the vanity plate  “indicat[ed to the detectives] that the Crown Victoria did not belong to the Virginia Beach Police Department.”

The detectives were in a marked car and as they approached the vehicle it began to be driven in a manner that was, shall we say, indicative the the driver was not attempting to keep his undercover profile from being discovered.  The car sped away, swerved in traffic, red and white emergency lights were activated and flashed alternately in a strobing fashion similar to that of emergency vehicles.  The detectives noticed there were other lights in the vehicle’s windows, though these were not illuminated.

After calling for back-up, the vehicle was stopped and the driver identified as Morgan.  He told the first officer that he encountered that he had a firearm in a backpack that was on the front passenger seat,  The officer also noted that Morgan smelled of alcohol.  He was arrested and the car impounded,  Subsequent examination of the vehicle showed that it was equipped with blue emergency lights in the front and read windows operated by the cigarette lighter (you youngsters know this as the “power point” where you plug in your phones).  In the trunk was found more emergency lights including adapters to affix a light bar to the top of the vehicle, a spotlight, a fourteen-inch-long flashlight with the words “Police Security,” a dog muzzle, and a dog vest marked “K-9 unit.” Police also found a duffle bag in the trunk that contained several firearm holsters, two safety vests, a firearm magazine pouch, gloves bearing the word “police,” zip handcuffs, and a pair of sunglasses with a sunglasses case, both bearing the word “police.” In the passenger compartment was a badge marked with a thin blue line and the word “Special Officer,” a pamphlet for law enforcement services, a state police inspection form, and, get this, Morgan’s concealed weapon permit.  Yep, the circuit court done give this bargain basement Barney Fife wannabe a carry permit.  (OK, I am being a little hard on the Circuit Court as later evidence might indicate that Morgan was not entirely off the sanity reservation.)

Let’s cut to the chase (pun intended).  At trial, Morgan argued that none of this evidence from the trunk was admissible because there was no evidence that he used any of it to impersonate a police officer.  The Commonwealth responded that the items were relevant to show Morgan’s state of mind when he committed the offense and demonstrated that he had been “pretending” to be a law enforcement officer.  The trial court agreed, admitting the evidence.

In his defense, Morgan presented testimony from a private security firm that Morgan was a licensed and certified security officer, that the equipment was all related to his job and that he was “permitted to install and operate red and white lights on his vehicle while on private property and write summonses for certain offenses.”  The trial court convicted Morgan of impersonating a police officer and being in possession of a gun while intoxicated.

On appeal, Morgan contended that the evidence failed to show that he was “pretending” to be a law enforcement officer.  The court notes that there is disagreement as to whether impersonation must be done with an intent to deceive, but concludes that it need not decide that issue because the evidence here clearly showed that Morgan intended for others to believe he was a law enforcement officer, driving his vehicle in a manner that, while reckless, was being done in a manner to deceive others that he had some authority to do so.

Now, you might be thinking, but what about the evidence from the trunk and the lights that he didn’t turn on?  He didn’t use these things (at least when observed by the real cops) with an intent to deceive, so the Court overturned the admission of those and that’s why it granted the appeal, right?

Of course not.  Quite the opposite.  The Court agrees with the trial judge that the evidence, while not probative of the actus reus (the Court’s Latin legalese, not mine), it was probative of the mens rea (my Latin legalese, not the Court’s).  That is, it was probative of Morgan’s state of mind.  Because the Court was assuming the intent was an element of the offense, evidence of mental state was relevant.  Q.E.D.

Still, the Court agrees with Morgan that taken individually, his erratic driving, the fact that he did not activate the blue lights, only the red and white ones, argue against his impersonating a law enforcement officer.  But, he Court continues, this is “missing the forest for the trees,” because the totality of the evidence also included his manner of driving (which the police testified was similar to police tactics) and the fact that the vehicle was almost good enough to fool real cops (in fact, but for the vanity plate, it might have done so).

Morgan also had some creative arguments about why he was not guilty of carrying a concealed firearm while intoxicated.  First, he was not a person “permitted to carry a firearm,” but “a person with a permit to carry a firearm.”  The Court said this was straining the language of the statute too far.  Second, he was not carrying a concealed weapon because his permit allowed him to conceal the weapon while in his vehicle.  The Court said the law permitted an exception to illegally concealing a weapon while in a vehicle, it did not mean that the weapon was not concealed, which it clearly was, and in any case the exception only applies if the “person with a permit” is sober, and Morgan wasn’t.  Finally, he maintained that the weapon was not on or about its person because it was inside the backpack in a holster.  Interestingly, the Court did not find that the gun was “on or about his person” under the wingspan rule, noting instead that for this particular offense, the weapon need not be on or about the person — it need only be shown that a weapon was being carried in a concealed manner while the permitholder was intoxicated.

Oh, and ladies and gentlemen: the story you just read is true. None of the names have been changed to protect the innocent.  And if you have never seen this sketch from The Tonight Show with Johnny Carson, you really have to watch it.

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