VA: Four cases in one day: Gant not preserved; “right result, wrong reason”

Defendant’s vehicle was searched incident to his arrest for public intoxication, and it was [supposedly] valid at the time. Gant was decided after, and the question of search incident was never raised until appeal, so Gant can’t apply. McGhee v. Commonwealth, 280 Va. 620, 701 S.E.2d 58 (2010).*

The officer received an anonymous tip that defendant had warrants for his arrest which was confirmed by dispatch; while he didn’t know whether they were for misdemeanors or felonies, that did not matter. The corroboration of a tip here would have to be applied differently than a tip of facts justifying a stop rather than existence of an arrest warrant. Sidney v. Commonwealth, 280 Va. 517, 702 S.E.2d 124 (2010).*

The “right result, wrong reason” doctrine saves this search of defendant’s person because the officer actually had probable cause before the patdown. Under this doctrine, all the facts necessary to the conclusion have to have been developed in the trial court, and here they were. The court compared other cases where the rule was not applied because the facts weren’t developed. Perry v. Commonwealth, 280 Va. 572, 701 S.E.2d 431 (2010).*

Following Perry then, the court of appeals erred in alternatively concluding that defendant consented to a search of his jacket when he asked for it on being arrested because the facts were not fully developed on this issue. There was a gun in the jacket, and he was a felon. Banks v. Commonwealth, 2010 Va. LEXIS 274 (November 4, 2010).* [One problem here will be “immediately apparent.” Depending on the gun, the weight of a gun in a jacket would be “immediately apparent” to anyone picking up the jacket, akin to “plain feel” under Dickerson. See where this is going? I’m not telling the prosecutors anything they probably won’t figure out on their own, even assuming they ever read this website.]