COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Richmond, Virginia
OTIS PURCELL JOHNSON, JR.
OPINION BY
v. Record No. 3071-03-2 JUDGE D. ARTHUR KELSEY
FEBRUARY 15, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Bradley B. Cavedo, Judge
(Michael E. Hollomon, on brief), for appellant. Appellant
submitting on brief.
(Jerry W. Kilgore, Attorney General; Alice T. Armstrong,
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
This case presents the question whether an appellant’s failure to appeal one of two
alternative grounds for a trial court’s decision waives any further appellate review of that
decision. We hold that it does, subject to the caveat that the alternative holding must be legally
capable ⎯ standing alone ⎯ of supporting the trial court’s decision.
I.
The trial court found Otis Purcell Johnson, Jr., guilty of possession of heroin with intent
to distribute. Before trial, Johnson moved to suppress the evidence on the ground that the
arresting officer violated the Fourth Amendment by conducting an overbroad weapons frisk
during an investigatory detention. During this frisk, the officer discovered heroin in a balled-up
jacket that Johnson had been tightly clutching. At trial, the officer testified that outstanding
warrants existed for Johnson’s arrest at the time of the encounter ⎯ a fact he would have learned
moments later while checking Johnson’s identification. A search incident to arrest, the officer
stated, would have necessarily followed.
The Commonwealth responded to the motion to suppress on two grounds. First, the
prosecution claimed the circumstances justified a weapons search of the jacket. See generally
Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 221 (1977) (holding that, during
a Terry stop, a weapons frisk may be conducted if the officer “reasonably believes that the
individual might be armed”). The prosecution also argued, in the alternative, the inevitable
discovery doctrine cured any potential violation of Fourth Amendment search and seizure
principles. See generally Commonwealth v. Jones, 267 Va. 532, 535-38, 593 S.E.2d 204, 206-08
(2004) (tracing the history of the inevitable discovery doctrine and its application in Virginia).
The trial court denied Johnson’s motion to suppress, holding that (i) the officer did not
exceed the permissible limits of a weapons frisk, and (ii) in any event, the evidence proved the
heroin would have been “inevitably discovered” by the officer even if the weapons frisk had not
taken place due to the presence of several outstanding warrants for Johnson’s arrest at the time of
the encounter. Relying on both grounds, the trial court denied the motion.
II.
On appeal, Johnson challenges only the trial court’s first holding. He argues the trial
court erred in finding the weapons frisk was within the scope of permissible Fourth Amendment
limits. On that basis, Johnson requests that we reverse the trial court’s denial of the suppression
motion and vacate his conviction. Johnson, however, does not challenge on appeal the trial
court’s alternative holding applying the inevitable discovery doctrine to the facts of this case.1
1
In its appellee’s brief, the Commonwealth raised the trial court’s inevitable discovery
ruling as an alternative basis for affirming Johnson’s conviction. Johnson filed no reply brief,
which he had a right to do under Rules 5A:19(c)(3) and 5A:22.
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From a practical point of view, for us to reverse the judgment, we would have to raise a
challenge on Johnson’s behalf to the trial court’s inevitable discovery ruling, conceive of a
reason to find fault with it, and then use that reason as a basis for setting aside Johnson’s
conviction. Suffice it to say, such an exercise of sua sponte judicial power would impermissibly
place us in the role of advocate ⎯ far outside the boundaries of our traditional adjudicative
duties.
For these reasons, we join the majority of jurisdictions holding that in “situations in
which there is one or more alternative holdings on an issue,” the appellant’s “failure to address
one of the holdings results in a waiver of any claim of error with respect to the court’s decision
on that issue.” United States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001) (quoting Kauthar
SDN BHD v. Sternberg, 149 F.3d 659, 668 (7th Cir. 1998)).2 If we were to hold otherwise, “an
appellant could avoid the adverse effect of a separate and independent basis for the judgment by
ignoring it and leaving it unchallenged.” San Antonio Press v. Custom Bilt Machinery, 852
S.W.2d 64, 65 (Tex. App. 1993).
That said, we still must satisfy ourselves that the alternative holding is indeed one that
(when properly applied to the facts of a given case) would legally constitute a freestanding basis
in support of the trial court’s decision. See, e.g., Navajo Nation v. MacDonald, 885 P.2d 1104,
1106 (Ariz. Ct. App. 1994) (concluding that the alternative holdings “are sufficient to support the
2
See also South Carolina Tax Comm’n v. Gaston Copper Recycling Corp., 447 S.E.2d
843, 847 (S.C. 1994) (affirming trial court “where an appellant fails to appeal the alternative
ground of a trial judge’s ruling”); San Antonio Press, Inc. v. Custom Bilt Machinery, 852 S.W.2d
64, 65 (Tex. App. 1993) (“When a separate and independent ground that supports a judgment is
not challenged on appeal, the appellate court must affirm.”); Morriss v. Enron Oil & Gas Co.,
948 S.W.2d 858, 871 (Tex. App. 1997) (holding that appellant who does not complain about
each independent ground waives his right to complain of the ruling). See generally 5 Am. Jur.
2d Appellate Review § 829 (2004) (“Essentially, therefore, where a separate and independent
ground from the one appealed supports the judgment made below, and is not challenged on
appeal, the appellate court must affirm.”).
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judgment” against the appellant); Career Builders, Inc. v. S. Indus. Builders, Inc., 254 S.E.2d
508, 509 (Ga. Ct. App. 1979) (affirming trial court’s judgment because the alternative ground
was “sufficient on its face to support the judgment rendered”); Britton v. Tex. Dep’t of Crim.
Justice, 95 S.W.3d 676, 681 (Tex. App. 2002) (holding that the “unchallenged independent
ground fully supports the complained-of ruling or judgment”). The trial court’s characterization
of its decision as an alternative holding, of course, does not end the matter. We must determine
whether it is or not. But, in making that decision, we do not examine the underlying merits of
the alternative holding ⎯ for that is the very thing being waived by the appellant as a result of
his failure to raise the point on appeal.
In this case, we agree with the trial court that the inevitable discovery doctrine, when
properly applied, serves as an adequate and independent legal basis for denying Johnson’s
motion to suppress. See Jones, 267 Va. at 535-36, 593 S.E.2d at 206 (applying inevitable
discovery doctrine as a well recognized “exception” to the exclusionary rule); Copeland v.
Commonwealth, 42 Va. App. 424, 432-37, 592 S.E.2d 391, 395-97 (2004) (recognizing “the
inevitable discovery exception to an otherwise invalid warrantless search”).3 We do not,
however, review the record to determine whether the trial court properly applied the doctrine to
the factual circumstances of this case. Johnson waived that issue by not raising it on appeal.
3
We reach this conclusion without first deciding the merits of the properly appealed
question concerning the scope of the Terry weapons frisk. Given our holding, any discussion on
that point would conflict with two principles of judicial self-restraint: our reluctance to issue
what amounts to an “advisory opinion” on an inessential subject, Craddock v. Commonwealth,
40 Va. App. 539, 551 n.1, 580 S.E.2d 454, 461 n.1 (2003), and our corresponding desire to
decide the case “on the best and narrowest ground available.” Air Courier Conference v. Am.
Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring).
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For these reasons, we reject Johnson’s appellate challenge to the trial court’s denial of the
motion to suppress and affirm his conviction.
Affirmed.
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