prepare a Case Brief on the provided judicial opinion regarding a criminal justice topic. The judicial opinion that you will prepare a Case BriefRecord No. 1336-16-3
COURT OF APPEALS OF VIRGINIA
Bartley v. Commonwealth
800 S.E.2d 199 (Va. Ct. App. 2017) • 67 Va. App. 740
Decided Jun 20, 2017
OPINION BY JUDGE WILLIAM G. PETTY
Michael J. Hallahan, II, for appellant.
John I. Jones, IV Assistant Attorney General
(Mark R. Herring, Attorney General, on brief), for
appellee.
Present: Judges Petty, Alston and Russell
200 *200 OPINION
BY JUDGE WILLIAM G.
PETTYTimothy Kenneth Bartley was convicted of
possession of methamphetamines in violation of
Code § 18.2-250. Bartley argues on appeal that the
trial court erred in denying his motion to suppress
because the search of his car was invalid. Bartley’s
assignment of error is procedurally defaulted
under Rule 5A:20(e); therefore, we affirm his
conviction. BACKGROUND
Waynesboro City police were executing a search
warrant for methamphetamines at the residence of
a suspected methamphetamine distributor
(distributor) when the distributor identified
Bartley as his “supplier.” The search warrant
authorized a search of the residence as well as a
search of “all persons therein [and] all vehicles
associated” with the residence. Before the search
was finished, and with the agreement of the police,
the distributor called Bartley and placed an order
for methamphetamines. When Bartley arrived at
the distributor’s residence a short time later, police
searched Bartley’s car and found a set of scales
coated in methamphetamine residue.
ANALYSIS
Bartley argues in his single assignment of error
that police improperly “lured” him to the residence
in order to bring him within the scope of the
search warrant. He further states that there was no
probable cause to search his car without a search
warrant because the distributor was not a reliable
informant. His entire argument, unedited,
supporting that assignment of error states:
There is no dispute as to the facts in this
case. The only dispute is whether or not
the search of the appellant’s vehicle was
legal. The Commonwealth’s position is that
since this search warrant covered all
persons and vehicles at said address, and
the appellant arrived during the execution
of the search warrant that the appellant
was lawfully searched under the authority
of the search warrant. The appellant
believes that the Court should suppress all
evidence as a result of the search because
the appellant because he was not named or
targeted in said search warrant, the
appellant only appeared at said residence
because he was invited over, at the request
of law enforcement, and the appellant does
not believe that it is lawful for law
enforcement, during the execution of a
valid search warrant, to lure third parties
onto the property so they can be searched
too. (Appendix p. 94) The Carroll case
allows the search of a vehicle when the
officer has probable cause that a crime has
been committed
743
*743 and
the Commonwealth argues that
the appellant could have been searched in
this case, even if there was no active
search warrant, because they would have
had probable cause to search him because
the target of the search warrant said that
the appellant was his supplier and he came
right over, but there is no evidence that the
target is a reliable informant, and without
that, the unreliable testimony of the
informer would not rise to the level of
probable cause. The fact that the appellant
arrived and did not have meth with him to
sell to the target goes to the target’s
unreliability,
working
against
the
Commonwealth. If law enforcement had
simply asked for permission to search, or
gotten another warrant, there would be no
argument here.
The appellant agrees that search warrants
are presumed valid, see Lebedun , and that
the search warrant in this case covers all
persons and vehicle present at that address,
and the appellant even agrees that it would
also cover people arriving at the residence
during its execution, on their own, but the
appellant argues that the search warrant
absolutely doesn’t cover anyone that law
enforcement can lure over or invite onto
the property, as they did in this case. It is
clear that the appellant only came over
because he was asked to by law
enforcement, via the target, and the
appellant would of otherwise not been
there. Law enforcement clearly thought
they could side step getting a search
warrant to go after the appellant. The
appellant believes that the trial court
should have granted the appellant’s Motion
to Suppress and suppressed the evidence
found as a result of the search of the
appellant’s vehicle, and all fruits obtained
from it. That would have suppressed all of
the contraband offered into evidence by
201
*201 the
Commonwealth and with nothing
left, the trial court should have dismissed
the charge against the appellant.
In summary, luring the appellant over to
the address of the search warrant and using
the authority of the search warrant to then
search his vehicle was clearly outside the
744
*744 scope
of the search warrant and there
wasn’t sufficient probable cause to
independently search appellant’s vehicle.
Appellant’s Br. at 4-6.
“Rule 5A:20(e) requires that an appellant’s
opening brief contain ‘[t]he principles of law, the
argument, and the authorities relating to each
question presented.’ Unsupported assertions of
error ‘do not merit appellate consideration.’ ”
Jones v. Commonwealth , 51 Va. App. 730, 734,
660 S.E.2d 343, 345 (2008) (alteration in original)
(quoting Buchanan v. Buchanan , 14 Va. App. 53,
56, 415 S.E.2d 237, 239 (1992) ), aff’d in part,
vacated in part , 279 Va. 52, 688 S.E.2d 269
(2010). We require adherence to this rule because
[a] court of review is entitled to have the
issues clearly defined and to be cited
pertinent authority. The appellate court is
not a depository in which the appellant
may dump the burden of argument and
research. To ignore such a rule by
addressing the case on the merits would
require this court to be an advocate for, as
well as the judge of the correctness of,
[appellant’s] position on the issues he
raises. On the other hand, strict compliance
with the rules permits a reviewing court to
ascertain the integrity of the parties’
assertions which is essential to an accurate
determination of the issues raised on
appeal.
Id. at 734-35, 660 S.E.2d at 345 (second alteration
in original) (quoting People v. Trimble , 181
Ill.App.3d 355, 130 Ill.Dec. 296, 537 N.E.2d 363,
364 (1989) ). Furthermore, “when a party’s ‘failure
to strictly adhere to the requirements of Rule
745
5A:20(e)’ is significant,” this Court may treat the
question as waived. Parks v. Parks , 52 Va. App.
663, 664, 666 S.E.2d 547, 548 (2008) (quoting Jay
v. Commonwealth , 275 Va. 510, 520, 659 S.E.2d
311, 317 (2008) ).1 *745 Here, Bartley’s argument
that the police improperly “lured” him to the
residence to bring him within the scope of the
search warrant consists solely of conclusory
statements unsupported by any legal analysis or
authority. Bartley cites Lebedun , presumably
Lebedun v. Commonwealth , 27 Va. App. 697, 501
S.E.2d 427 (1998), only to affirm his agreement
that search warrants are presumptively valid.
Significantly, Bartley offers no legal support from
Lebedun or any other source for his argument,
merely stating that he “does not believe that it is
lawful for law enforcement, during the execution
of a valid search warrant, to lure third parties onto
the property so they can be searched too.” In the
absence of legal analysis or authority on the point,
what Bartley may believe is irrelevant.
1 2 Rule 5:27 has a similar requirement for
opening briefs filed in the Supreme Court.
And, like this Court, the Supreme Court
considers “[t]he failure to comply with the
requirements of Rule 5:27 [to be a] waiver
of the arguments the party failed to make.”
John Crane, Inc. v. Hardick , 283 Va. 358,
376, 722 S.E.2d 610, 620 (2012).
2 The Commonwealth cited multiple cases
from this Court, as well as from our sister
states, in support of its argument that the
search of Bartley’s car was lawful. Bartley
did not challenge the Commonwealth’s
persuasive authority in a reply brief nor did
he address it at oral argument. However, in
light of our conclusion that he has waived
his assignment of error, we express no
opinion on the merits of the assignment of
error.
Likewise, Bartley’s argument that a warrantless
search of his car was not supported by probable
cause is devoid of legal argument or support.
Bartley makes one reference in his opening brief
to Carroll , presumably Carroll v. United States ,
267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925),3
202
746
pointing out only that “[t]he Carroll case allows
the [warrantless] search of a vehicle when the
officer has probable cause [to believe] that a crime
has been committed….” Bartley specifically argues
that there was no probable cause to search his car
because the distributor, the target of the warrant,
was *202 not a reliable informant. Bartley fails to
support this argument with any legal analysis or
authority from Carroll or any other source. Bartley
does not address the factors to be considered in
determining an informant’s reliability; he simply
states that his arrival at the residence without
methamphetamine *746 in a form suitable for sale,
“goes to the target’s unreliability, working against
the Commonwealth.”
3 At issue in Carroll v. United States was the
validity of a warrantless search of a car for
contraband liquor. 267 U.S. at 162, 45
S.Ct. at 288.
“At the risk of stating the obvious, the Rules of the
Supreme Court are rules and not suggestions; we
expect litigants before this Court to abide by
them.” Eaton v. Wash. Cty. Dep’t of Soc. Servs. ,
66 Va. App. 317, 332 n.1, 785 S.E.2d 231, 239 n.1
(2016). If Bartley believed that the trial court
erred, Rule 5A:20(e) required him “to present that
error to us with legal authority to support [his]
contention.” Fadness v. Fadness , 52 Va. App. 833,
851, 667 S.E.2d 857, 866 (2008). Simply put, “[i]t
is not the role of the courts, trial or appellate, to
research or construct a litigant’s case or arguments
for him or her, and where a party fails to develop
an argument in support of his or her contention or
merely constructs a skeletal argument, the issue is
waived.” Sneed v. Bd. of Prof’l Responsibility of
the Supreme Court of Tenn. , 301 S.W.3d 603, 615
(Tenn. 2010). Bartley’s failure to provide legal
argument and authority as required by Rule
5A:20(e) leaves us without a legal prism through
which to view his alleged error and, therefore, is
significant; accordingly, we deem his assignment
of error waived.
In doing so, however,
[w]e take the occasion … to reiterate the
[consequences of a violation of Rule
5A:20] and to reemphasize the necessity of
compliance with its … requirements. We
do this because we have observed far too
many violations of this rule; and we
lament the numerous instances in which
we have been forced to [deem an argument
waived] because of failure to observe the
rule’s requirements.
by
Rule
5A:20(e)
was
so
significant that the Court was compelled to
find
that
the
appellant
had
waived
consideration of his argument that the trial
court erred in denying a defense motion to
strike
because
the
evidence
was
insufficient to prove defendant used a
firearm in the commission of a robbery);
Atkins v. Commonwealth , 57 Va. App. 2,
20, 698 S.E.2d 249, 258 (2010) (“Because
appellant provides no legal argument or
Our criminal case law is replete with
authority in his brief to support his
instances where counsel’s failure to comply
argument, and we find this omission
with Rule 5A:20(e) deprived the appellant
significant, appellant’s claim that the trial
of the opportunity to have the issue decided
court erred in not finding his due process
on the merits. See, e.g. , Lee
rights were violated is waived under Rule
4 4
747
required
v.
Commonwealth , No. 1745-15-2, 2017 WL
5A:20(e).”).
972167, at *3 n.8, 2017 Va. App. LEXIS
——–
77 at *6 n.8 (Va. Ct. App. Mar. 14, 2017)
(noting that appellant’s argument that
involuntary manslaughter is a lesserincluded offense of felony homicide was
waived under Rule 5A:20(e) regardless of
appellant’s concession at oral argument);
Prekker v. Commonwealth , 66 Va. App.
103, 122, 782 S.E.2d 604, 613 (2016)
(finding that appellant’s notice challenge to
the
mandatory
provisions
was
minimum
waived
sentence
under
Rule
5A:20(e)); Mitchell v. Commonwealth , 60
Va. App. 349, 353-55, 727 S.E.2d 783,
785-86 (2012) (finding that appellant’s
failure to cite sufficient legal authority as
*747 Towler
v. Commonwealth , 216 Va. 533, 534,
221 S.E.2d 119, 121 (1976) (per curiam) (footnote
added) (addressing the consequences of failing to
file a necessary transcript).
CONCLUSION
On appeal, it is Bartley’s burden to prove the trial
court committed reversible error. Because
Bartley’s sole assignment of error is waived under
Rule 5A:20(e), he has failed to meet his burden.
Therefore, we affirm his conviction.
Affirmed.
CJUS 230
CASE BRIEF RUBRIC
Criteria
Content 70%
Caption and
Facts
Procedural
History
Issue
Rule of Law
Holding
Rationale
Advanced
9 to 10 points
The caption is provided at the top of the
case brief. The caption includes the
correct case name and proper citation.
The facts section includes all facts
relevant to the issues examined by the
court. The facts appear in chronological
order.
9 to 10 points
The procedural history section contains
all relevant procedural steps in the case.
The procedural posture of the case is
presented in chronological order.
Levels of Achievement
Proficient
7 to 8.5 points
The caption is provided within the
case brief. The caption identifies
the case name and court. The facts
section includes the majority of the
relevant facts examined by the
court. The facts are in
chronological order.
7 to 8.5 points
Most of the procedural history is
included, except for one step the
case went through before appearing
in the present court.
9 to 10 points
The issue section combines the
applicable law, issue presented to the
court, and relevant facts into one
question.
7 to 8.5 points
The issue section contains the
applicable law and issue presented
to the court within one question.
Relevant facts were excluded.
9 to 10 points
The rule of law section correctly states
the legal test that the court applied to
resolve the legal issue in the case.
9 to 10 points
The holding section provides a brief and
accurate summary of the court’s final
ruling on the issue.
18 to 20 points
The rationale section includes the court’s
reasoning. This section provides the
court’s analysis in a logical and concise
manner, walking the reader through how
7 to 8.5 points
The rule of law provides most of
the legal test used by the court to
resolve the legal issue.
7 to 8.5 points
The holding provides a brief
summary of the final court’s ruling.
The holding is inaccurate.
14 to 17.5 points
The rationale section includes most
of the court’s analysis. There are
some gaps in the legal analysis,
making the discussion of the court’s
Developing
1 to 6.5 points
The case name is provided. Some
significant facts are included. The
facts are not presented in a
chronological manner.
Not Present
0 points
Not Present
1 to 6.5 points
0 points
Some of the procedural history is
Not Present
included. However, many steps that
the case went through before it
arrived at the present court are
lacking.
1 to 6.5 points
0 points
The issue section contains the main
Not Present
topic that was before the court. The
issue is not presented in the form of
a question, which should contain the
applicable law and relevant facts.
1 to 6.5 points
0 points
The rule of law is unclear and states Not Present
an incorrect legal test.
1 to 6.5 points
The holding is unclear and/or
incorrect.
0 points
Not Present
1 to 13.5 points
0 points
The rationale section provides some Not Present
of the court’s analysis. This
analysis is presented in an unclear
manner, leaving the reader to
Page 1 of 2
CJUS 230
the court arrived at its decision by
presenting answers to the following
questions: • Why did the court reach the
holding that it did? • What steps of logic
did the court take in arriving at its
decision? • What facts made a
difference?
Structure 30%
Advanced
Grammar
18 to 20 points
and Spelling Spelling and grammar are correct.
Sentences are complete, clear, and
concise. Formal academic language is
used.
Length and
9 to 10 points
Format
The case brief is no longer than 2 pages,
double-spaced using Times New Roman,
12-point font.
analysis of the legal issues
incomplete in some areas.
question how the court decided the
legal issues in the case.
Proficient
14 to 17.5 points
Spelling and grammar has some
errors. Sentences are presented as
well. Formal academic language is
used.
7 to 8.5 points
The case brief exceeds 2 pages. The
case brief is double-spaced using
Times New Roman, 12-point font.
Developing
1 to 13.5 points
Spelling and grammar errors
distract. Sentences are incomplete
or unclear. Informal academic
language is used.
1 to 6.5 points
Not Present
0 points
Not Present
0 points
The case brief exceeds 2 pages. The Not Present
case brief is not double-spaced.
Page 2 of 2
SAMPLE CASE BRIEF: CJUS230
Caption:
Vosburg v. Putney, 80 Wis. 523 (1891)
Facts:
Two boys were in a classroom during school hours; the class had just been called to order
by the teacher. The defendant reached across the aisle with his foot and kicked his toe
against the plaintiff’s shin. Afterward, the shin area became infected, and the plaintiff
eventually became lame.
Procedural History:
The case was originally brought before the circuit court. A trial in the circuit court
resulted in a Plaintiff’s verdict. The Defendant appealed to the Supreme Court of
Wisconsin. The case was reversed for error, and the Court awarded a new trial. The case
was tried again and resulted in another Plaintiff’s verdict. The Defendant appealed the
judgment to the Supreme Court of Wisconsin.
Issue:
Whether a boy satisfied the intent element of battery when he kicked another boy in the
knee (while in class) and, as a result, the knee later became infected and diseased.
Rule of Law:
In an action to recover damages for an alleged assault and battery, the plaintiff must show
either that the defendant intended to do the act and the act was unlawful or that the
defendant intended the ultimate result. If the intended act is unlawful, then the intention
to commit it must necessarily be unlawful.
Holding:
Yes. Because the defendant’s intentional act of kicking the plaintiff was unlawful, his
intention to kick plaintiff was also unlawful. Defendant was at fault for any harm
resulting from his unlawful act.
Rationale:
Here, the boy did not intend the end result (injuring his friend’s leg so severely), but he
did intend to kick him in the shin during a time (class in session) and a place (the
classroom) where this action (the kicking) was unlawful. Because he intended the act
(kicking) and the kick was unlawful, he satisfied the intent element of battery.
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