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Picky, picky, picky

We have yet another example of the importance of precision in appellate practice in Virginia, even if the lack of precision ultimately turned out not to be fatal.The issue stemmed from the detention of Matthew Tremaine Moore in February 2005 after a Henrico patrolman noticed a peeling inspection sticker on the windshield of Moore’s rental car. The patrolman pulled Moore because he had often found a peeling inspection sticker an indication that it had been stolen from another vehicle.

The odor of marijuana was wafting from Moore’s vehicle when the patrolman approached it, and a search of the car disclosed marijuana, cocaine, heroin, digital scales and a handgun.

Moore entered a conditional guilty plea after his motion to suppress those items was denied. He contended that the officer lacked probable cause to search the vehicle in the lower court and before the Virginia Court of Appeals.

In its response, the attorney general’s office restated the issue as whether the officer had a reasonable articulable suspicion to stop the vehicle. That was the question that was addressed in all subsequent argument and briefing in the court of appeals.

A panel of the court found the officer lacked reasonable suspicion and suppressed the evidence.

The court granted en banc review and dismissed the appeal without addressing the merits. On its own motion, the court cited Rule 5A:12(c) and dismissed the appeal because Moore was seeking reversal on an issue – reasonable articulable suspicion – different from the one he had raised in the question presented in his petition for appeal – probable cause.

That was too technical a distinction for a majority of the Supreme Court of Virginia in Moore v. Commonwealth. Moore’s violation of a non-jurisdictional rule was not so substantial as to preclude the court of appeals from addressing the merits of the case, the majority held.

Justices Donald W. Lemons and Cynthia D. Kinser dissented. Misstating the legal issue on which an appeal is based “goes directly to the heart of appellate review” and warranted dismissal, Lemons wrote.

By Alan Cooper

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