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

Last Opinions for 2023

The Court of Appeals issued two more published opinions as 2023 closed out. Lisa G. Boxley v. Estel R. Crouse, et al. is about a prescriptive easement and comes from Judge Humphreys, joined by Judges Friedman and White. Judge Humphrey's retirement officially started on Sunday (if you are wondering why he would retire on the last day of the year and not sometime in 2024 after his successor was named, it is likely something to do with the requirement of having to wait 3 months before be can resume duties as a senior judge -- this requirement was introduced to comply with a provision of the ACA that is intended to keep employers from terminating employees and the immediately bringing them on as contractors who aren't entitled to health insurance). This is likely not the last opinion from Judge Humphreys as an active Judge, but future opinions will have the notation that he sat on the case "prior to his retirement on December 31, 2023."

The case itself is not uncommon for the area of prescriptive easement. Boxley owns the land in question and Crouse claimed a right of way by prescription. Boxley blocked that right of way with a fence and gate and off they went to court. The parties own adjoining parcels in Highland County, with Crouses' property being accessed by "Hawk Trail" from State Route 220 (Jackson River Road) via Whippoorwill Lane. As you can see from the tax map below, Crouse's property is landlocked and Hawk Trail runs through the back portion of Boxley's property, while Whippoorwill Lane runs along the border of that parcel and then diverts into a neighboring parcel before intersecting with Hawk Trail.

The previous owner of Crouse's property maintained, widened and improved the road beginning in 1976. The property changed hands in 1988, and the new owner held the land for just about a year before selling to Crouse. In 1995, the prior owner of Boxley's parcel erected gate, but provided Crouse with a key, though the evidence showed that the gate was never locked. In 2020, Boxley acquired the right to the property through a devise to a trust and replaced the existing gated with a new gate which she proceeded to lock, excluding Crouse from her property.

To prove a prescriptive easement, the party seeking the easement must show that the use "was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over which it passes, and that the use has continued for at least 20 years." The evidence certainly showed that this happened for at least 19 years (1976-1995) before the first gate was installed, but did the presence of the unlocked gate constitute some evidence that the use was no permissive? Boxley certainly though so, but the circuit court disagreed and the Court of Appeals affirms that decision.

The installation of the gate in 1995 did not convert the adverse use by the prior owner (or by Crouse) into a permissive use. Because the evidence was the gate was never locked, the mere presence of the gate was not sufficient to bar Crouse (or anyone really) from using the road.

Boxley had another issue -- it seems the gate merely blocked the right of way, but was not connected to a fence. She claimed that Code § 33.2-110(A) somehow permitted her to maintain a gate so long as it was not part of a fence-line because that statute permits the erection of gated fence-lines across private rights-of-way. Unfortunately, there was a 1997 case right on point that said the statute does not apply to gates that are not attached to fences. The purpose of Code § 33.2-110(A) is to allow owners of land subject to a dominant right of way to maintain fences to, for example, contain livestock or exclude wildlife. A gate without a fence does not do that.

Christopher Patrick Carter v. Commonwealth of Virginia involves whether Mr. Carter should have be allowed to withdraw conditional guilty pleas allowing him to appeal the circuit court's denial of his motion to suppress evidence obtained in a warrantless search of his person and vehicle. Carter was driving in an area of Fredericksburg "known to be frequented by drug users and dealers" when he caught the attention of a patrol officer. The officer stopped the vehicle for speeding (50 in a 45) and proceeded to engage Carter in conversation.

Noticing to plastic baggies on the car console, the officer inquired as to their contents. Carter stated that it was marijuana, and the officer conceded that it was legal for Carter to possess a small amount of that substance for person use. The officer called for a K-9 unit and then proceeded to write a "warning ticket."

Carter consented to a weapons pat-down and no weapons were found. During this search, the officer found $294 in cash. He also found a key-card for a room of the motel where Carter had pulled into when the stop occurred. Carter had told the officer he was staying at the motel.

The officer then asked to search Carter's vehicle, but Carter expressly refused to permit the search. As the K-9 unit had not arrived, Carter again radioed for a unit to be dispatched. Shortly thereafter a supervisor arrived and told the officer that he had "gone to far unless you get us something major." At this point the officer turned off his body camera. The officer and the supervisor continued speaking for several minutes, then the officer returned to Carter's vehicle and continued to question him. Another officer arrived and stood near Carter. During this time, the first officer remained in possession of Carter's room key.

More than 10 minutes after completing the "warning ticket," the officer told Carter that he was going to perform a "probable cause" search of the car. Of course, the search produced a firearm, cocaine, heroin and various items of use in the illegal drug trade.

We already know the circuit court denied the motion to suppress -- though how the judge reached the conclusion that there was probable cause to search is beyond my ken. It was beyond the ken of the Court of Appeals. Judge Chaney, joined by Judges Callins and White, reverse the denial of the suppression double quick. First, the Court finds that the evidence recovered in the pat-down was improperly obtained because the officer was specifically looking for weapons (well, we all know that he wasn't really, but he said he was), so reaching into Carter's pockets to remove the cash -- the only real evidence of possible drug dealing -- was not permitted. Second, there as simply no other basis for a "probable cause" search of the vehicle.

I would add that Carter was seized the moment the officer took his hotel room key card and certainly he would not have felt free to leave once the additional officers arrived. But what really seals the deal for me is the text I highlighted -- the officer turned off his body camera while discussing whether he had probable case with his supervisor (who had just told him he didn't have it). There is no excuse for an officer turning off his body camera, and judges should start taking that circumstance into account when the camera is turned off (or "accidentally" left in the cruiser. The purpose of the body camera is to protect the officer from false claims of abuse, but also to protect the public from police misconduct.

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