PRESENT: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
GUY ANTHONY BANKS, JR.
OPINION BY
v. Record No. 092455 JUSTICE LEROY F. MILLETTE, JR.
November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Guy Anthony Banks, Jr. was convicted of possessing a
firearm after having been convicted of a felony, in violation
of Code § 18.2-308.2. Before trial, he moved to suppress the
gun and the jacket in which it was discovered as the fruits of
an unlawful seizure. The circuit court denied the motion. The
Court of Appeals, in an unpublished opinion, affirmed, but on a
different ground — a ground neither urged by the Commonwealth
nor addressed by the circuit court. We consider whether the
Court of Appeals erred in affirming on the alternative ground
that Banks consented to the seizure by requesting a jacket
following his arrest on other charges.
BACKGROUND
On November 15, 2007, Officers K.S. Mitchell and T.C.
Clements of the Lynchburg Police Department arrested Banks in
the City of Lynchburg pursuant to multiple warrants that had
been issued the previous day as a result of an investigation of
an attempted robbery and shooting. Although the warrants
listed Banks’ address as 505 Jones Street, the officers
ultimately found him at a home located on 820 Brook Street.
When they arrived at the home, Officer Mitchell knocked on the
front door, and a woman answered. Officer Mitchell asked her
whether Banks was in the home, and she motioned to the
upstairs. Officers Mitchell and Clements, along with another
officer, then entered the home and started up the stairs. Upon
reaching the top step, they encountered another woman. When
they asked her where Banks was, she pointed to a bedroom and
called out his name. Banks then emerged from the bedroom, and
the officers took him into custody in the doorway.
At the time of his arrest, Banks was wearing a long-
sleeved t-shirt and mesh shorts, but no shoes or socks.
Officer Mitchell testified that it was “a rather cold day,” so
he asked Banks, who had been handcuffed, “if he wanted to grab
his shoes or a jacket” before going outside to the patrol car.
According to Officer Mitchell, Banks responded, “yes,” and the
officers escorted him back to the bedroom. Upon stepping
inside, however, Banks told the officers that his shoes were in
his car. Officer Mitchell then led Banks outside, collected
his shoes, and placed him in the patrol car.
While Officer Mitchell was accompanying Banks outside,
Officer Clements remained upstairs talking with a woman who had
been in the bedroom with Banks. Officer Clements did not hear
Officer Mitchell ask Banks if he wanted a jacket, and Officer
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Clements “didn’t ask [Banks] anything about that.”
Nonetheless, Officer Clements decided to get Banks one because
he was inappropriately dressed for the weather, which Officer
Clements described as “45 degrees, [with] 20 to 25-mile-an-hour
winds.” Officer Clements asked the woman in the bedroom if
Banks had a jacket, and she pointed to one that was hanging on
the top of the closet door. Officer Clements grabbed the
jacket and began searching its pockets for “anything
dangerous.” “As soon as [he] put [his] hand into the right
pocket, [he] felt the butt of a gun.” He then immediately
pulled his hand out, looked inside, and saw a revolver. At
that point, Officer Clements notified Officer Mitchell, and he
seized the jacket and gun.
Banks was indicted on multiple charges, including two
counts of possession of a firearm by a convicted felon, in
violation of Code § 18.2-308.2. Prior to trial, Banks moved to
suppress the jacket and gun, claiming that they were seized in
violation of the Fourth Amendment because the officers had no
authority to reenter and search the bedroom after his arrest.
At the suppression hearing, the Commonwealth advanced four
arguments for why Banks’ motion should be denied: (1) Banks
lacked standing to challenge the seizure; (2) Banks’ state of
undress created an exigency justifying the seizure; (3) the
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seizure was pursuant to a search incident to a lawful arrest;
and (4) the gun would have been inevitably discovered.
The circuit court addressed each of the Commonwealth’s
arguments. First, it ruled that Banks had standing because he
had a reasonable expectation of privacy in the bedroom.
Second, it found no evidence that the officers would have
inevitably discovered the gun. Third, it concluded that the
seizure did not arise out of a search incident to a lawful
arrest. Lastly, it considered whether Banks’ inappropriate
dress presented an exigency justifying the seizure of the
jacket and, relying on United States v. Gwinn, 219 F.3d 326
(4th Cir. 2000), held that it did. Accordingly, the circuit
court denied Banks’ motion. Banks was then tried without a
jury and convicted of one count of possession of a firearm by a
convicted felon. ∗
The Court of Appeals, in an unpublished opinion, affirmed
the denial of Banks’ motion to suppress. Banks v.
Commonwealth, Record No. 3059-08-3 (Nov. 10, 2009). It did so,
however, on a ground that was neither argued by the
Commonwealth nor considered by the circuit court. Accepting
Officer Mitchell’s version of events, the Court of Appeals
first found that “Banks agreed he wanted a jacket and shoes
∗
The two counts in the indictment were merged after the
circuit court granted Banks’ motion to strike in part.
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and, therefore, consented to the retrieval of the jacket from
his bedroom, which he willingly re-entered with the officers.”
Id., slip op. at 4. The Court of Appeals then considered
whether Banks’ consent was valid and, after finding “no
evidence in the record of involuntariness or exploitive,
unconstitutional conduct,” concluded that it was. The Court of
Appeals thus held that “the seizure of the jacket was lawful
under the Fourth Amendment as authorized by Banks’ consent.”
Id., slip op. at 4-5. We awarded Banks this appeal.
DISCUSSION
Relying on our recent decision in Whitehead v.
Commonwealth, 278 Va. 105, 677 S.E.2d 265 (2009), Banks
contends that the Court of Appeals erred in affirming the
denial of his motion to suppress on the ground that he
consented to the seizure because the Commonwealth did not argue
consent as an independent basis for upholding the seizure, and
because the circuit court did not make findings as to consent.
In response, the Commonwealth maintains that the Court of
Appeals’ decision did not contravene Whitehead because the
issue of consent was raised in the circuit court, albeit
“inartfully,” and because “the facts in the record fully
support the conclusion that Banks consented to the seizure of
his jacket.”
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We have long said that “[w]e do not hesitate, in a proper
case, where the correct conclusion has been reached but the
wrong reason given, to sustain the result and assign the right
ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283
(1963) (citations omitted). But in Whitehead, we limited the
application of the “right result for the wrong reason” doctrine
to “cases in which the party seeking affirmance” argued the
“right ground” to the circuit court. 278 Va. at 114, 677
S.E.2d at 270 (internal quotation marks omitted). Today, in
Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436
(2010) (this day decided), we recognize and correct that
misstep:
[U]pon reconsideration of the case law on this
matter, we are of the view that this principle
. . . is inconsistent with prior case law, and is
inconsistent with case law that followed it. Failure
to make the argument before the trial court is not
the proper focus of the right result for the wrong
reason doctrine. Consideration of the facts in the
record and whether additional factual presentation is
necessary to resolve the newly-advanced reason is the
proper focus of the application of the doctrine.
Thus, we must consider whether the record supports the Court of
Appeals’ conclusion that Banks consented to the seizure.
Before beginning our analysis, however, we must clarify
what it means to say that the record supports an alternative
ground for affirmance. The record supports an alternative
ground when it reflects that all evidence necessary to that
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ground was before the circuit court. And if that evidence was
conflicting, then the record must show how the circuit court
resolved the dispute — for example, it must demonstrate how
contradicting testimony was weighed or credited.
In affirming the denial of Banks’ motion to suppress on an
alternative ground, the Court of Appeals concluded that Banks
consented to the seizure of the jacket. The facts surrounding
the seizure, however, were in dispute; and the circuit court
made no findings as to consent, resolving the motion on a
separate, independent ground: exigent circumstances.
The Court of Appeals found consent based on the testimony
of Officer Mitchell, who claimed that Banks answered “yes” when
asked if he wanted to grab shoes and a jacket before going
outside to the patrol car. But the record also reflects that
Banks testified that he never asked for a jacket, and that
Officer Clements, who was at Officer Mitchell’s side, did not
know whether Banks had been asked if he wanted a jacket.
Indeed, Officer Clements testified that he grabbed the jacket
not because Banks had requested one, but rather because it was
cold outside.
To be sure, as the Court of Appeals noted, the general
rule on review is that the evidence is viewed in the light most
favorable to the prevailing party below. Banks, slip op. at 2
n.3 (citation omitted). But, as discussed above, when
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considering whether the “right result for the wrong reason”
doctrine should be applied, the standard of review is whether
the record demonstrates that all evidence necessary to the
alternative ground for affirmance was before the circuit court
and, if that evidence was conflicting, how it resolved the
dispute, or weighed or credited contradicting testimony.
In this case, the record shows that the facts surrounding
the seizure were in conflict and that the circuit court neither
resolved the dispute nor indicated how it weighed or credited
the contradicting testimony as to whether Banks asked for a
jacket. As a result, the Court of Appeals was in no position
to find that he consented to the seizure, especially
considering that it did not “ha[ve] an opportunity to observe
the witnesses, their candor, manner and demeanor, and thereby
to determine the weight to be accorded their testimony.”
Dailey v. Commonwealth, 208 Va. 452, 455, 158 S.E.2d 731, 733
(1968).
Because the record in this case demonstrates that the
evidence as to whether Banks consented to a seizure of the
jacket was conflicting and that the circuit court did not
resolve the dispute, we hold that the Court of Appeals erred in
applying the “right result for the wrong reason” doctrine to
affirm the denial of his motion to suppress on the alternative
ground that he consented to the seizure of the jacket.
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CONCLUSION
For the foregoing reasons, we will reverse the judgment of
the Court of Appeals and remand this case. On remand, the
Court of Appeals is directed to consider the issue with which
it was presented: whether the circuit court erred in holding
that Banks’ state of undress presented an exigency justifying
the officers’ seizure of the jacket.
Reversed and remanded.
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