COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
KEITH OSBORNE COLLINS
v. Record No. 3086-97-4
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
KEITH OSBORNE COLLINS AUGUST 10, 1999
v. Record No. 3087-97-4
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
CHRISTIAN DANTE BLAYLOCK
v. Record No. 0062-98-4
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate
Bonnie H. Hoffman, Assistant Public Defender
(Office of the Public Defender, on briefs),
for appellants.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
briefs), for appellee.
In each of these cases, appellants were convicted under
Code § 18.2-119 of trespassing. On appeal, appellants contend:
1) the police had no lawful authority, as agents of the manager
of a public housing complex, to issue them a trespass notice,
and 2) the process whereby they were barred from re-entering
such complex violated their constitutional right to due process.
We find no merit in appellants' arguments and affirm the
convictions.
I.
FACTUAL BACKGROUND
On June 29, 1995, the management of Loudoun House
Apartments, a federally-subsidized apartment complex, issued a
limited power of attorney appointing "each and every sworn
officer of the Leesburg Police Department as [its] true and
lawful attorneys-in-fact." This power of attorney authorized
the Leesburg officers to "serve trespass notices to any persons
encountered on Loudoun House property who are not on a lease and
cannot demonstrate a legitimate purpose for being on the
premises." Additionally, the officers were authorized to file
criminal complaints for trespass against persons who returned to
the Loudoun House premises after being served with a notice.
On January 14, 1997, Officer Eric Paul of the Leesburg
Police Department barred Keith Osborne Collins pursuant to the
power of attorney. Police filled out a trespass notice, read it
to appellant and explained its significance. The notice
consisted of a one-page form providing that the management of
Loudoun House has given "permission to the officers of the
Leesburg Police Department to issue trespass notices and enforce
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subsequent trespass violations." The notice further provided
that appellant was no longer permitted to enter the Loudoun
House property "under any circumstances" and would be subject to
arrest for trespass if he returned. Appellant signed the notice
but was not given a copy, as was the customary practice.
On April 10, 1997, Officer Paul and Officer Michael
Buracker observed appellant Collins walking into Building 15 on
the premises of Loudoun House. The officers followed appellant
Collins into the building and found him in the living room of
one of its apartments, whereupon they arrested him for
trespassing in violation of Code § 18.2-119. 1 On April 14, 1997,
police again arrested appellant Collins for trespass after
observing him entering a motor vehicle on the premises of
Loudoun House.
On July 2, 1996, Officer Paul barred Christian Dante
Blaylock by filling out and reading a trespass notice to him in
similar fashion. The notice is identical to the form used in
appellant Collins' case. Appellant Blaylock signed this notice.
On June 13, 1997, appellant Blaylock walked around the grounds
of Loudoun House for at least fifteen to twenty minutes at
1
"If any person without authority of law goes upon or
remains upon the lands, buildings or premises of another, or any
portion or area thereof, after having been forbidden to do so,
either orally or in writing, by the owner, lessee, custodian or
other person lawfully in charge thereof . . . he shall be guilty
of a Class 1 misdemeanor." Code § 18.2-119.
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10:30 p.m. and talked to various people. Loudoun County police
arrested appellant that night for trespass.
Before trial, appellants moved the court to exclude
evidence concerning the reasons for which Leesburg police
officers issued the barment notices. In each case, the court
granted appellants' motions but also granted the Commonwealth
leave to introduce such evidence if appellants challenged the
validity of the barment.
Appellants also filed pretrial motions to dismiss on the
grounds that the trespass notice violated Dillon's Rule and that
the barment process violated their constitutional right to due
process. The trial court denied each motion after holding
pretrial hearings. At the close of evidence at their jury
trials, appellants renewed these motions as motions to strike
or, in the alternative, to suppress the trespass notice. The
court also denied these motions. In appellant Blaylock's case,
the court cited the historical roots of Code § 15.1-138 to find
that it did not prohibit police from serving trespass notices. 2
At trial, appellants presented no evidence concerning their
purpose for being on the premises of Loudoun House when they
were initially served with a trespass notice and subsequently
2
In addition to the two challenges on appeal noted above,
appellant Blaylock also contends the trial court erred in
considering the legislative intent and history of Code § 15.1-138
to reach its decision because the statute is clear and unambiguous
on its face. For reasons set forth below, we hold that such
error, even if shown, is harmless in light of our decision in
Holland v. Commonwealth, 28 Va. App. 67, 502 S.E.2d 145 (1998).
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arrested for trespassing. The court found each appellant guilty
of trespassing in violation of Code § 18.2-119.
II.
ANALYSIS
A. VALIDITY OF POLICE AUTHORITY TO ISSUE TRESPASS NOTICES
Appellants first contend the police lacked lawful authority
to issue the trespass notices. Appellants contend the police
acted in their law enforcement capacity when barring
individuals, that such activity is a civil matter, and that Code
§ 15.1-138 expressly precludes police authority over such civil
matters.
At the time of appellant's arrest, Code § 15.1-138
provided:
The officers and privates constituting the
police force of counties, cities and towns
of the Commonwealth are hereby invested with
all the power and authority which formerly
belonged to the office of constable at
common law in taking cognizance of, and in
enforcing the criminal laws of the
Commonwealth and the ordinances and
regulations of the county, city or town,
respectively, for which they are appointed
or elected. Each policeman shall endeavor
to prevent the commission within the county,
city or town of offenses against the law of
the Commonwealth and against the ordinances
and regulations of the county, city or town;
shall observe and enforce all such laws,
ordinances and regulations; shall detect and
arrest offenders against the same; and shall
secure the inhabitants thereof from violence
and the property therein from injury.
Such policemen shall have no power or
authority in civil matters . . . .
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Although this section has been repealed, it was still in effect
at the time of appellants' arrests.
The issue raised in this appeal has been settled by our
decision in Holland v. Commonwealth, 28 Va. App. 67, 502 S.E.2d
145 (1998). That case likewise concerned the Loudoun House's
grant of a power of attorney to the Leesburg Police Department.
Id. at 68-69, 502 S.E.2d at 145-46. As in this case, Holland
was convicted of trespassing for entering the premises of
Loudoun House after officers of the Leesburg Police Department
issued him a trespass notice. Id. at 69-70, 502 S.E.2d at 146.
In Holland, we held that the power of police to bar individuals
pursuant to an ongoing request for assistance is necessarily
implied in the powers expressly granted by Code § 15.1-138. Id.
at 75, 502 S.E.2d at 149.
Appellants do not attempt to distinguish Holland; rather,
appellants ask that we overturn it. We decline to do so.
We are not at liberty to ignore the decision of a previous
panel. Commonwealth v. Burns, 240 Va. 171, 173-74, 395 S.E.2d
456, 457 (1990). See In re Baskins, 16 Va. App. 241, 245, 430
S.E.2d 555, 558 (1993), judgment reversed by, 247 Va. 506, 442
S.E.2d 636 (1994) ("[W]e are bound by the decision of a prior
panel of this Court."); Robinson v. Commonwealth, 13 Va. App.
540, 543, 413 S.E.2d 661, 662 (1992) ("Under the rule of stare
decisis, a decision by a panel of this court is an established
precedent."). If a panel decision contains a “flagrant error or
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mistake,” it may be corrected through the en banc hearing
process. Burns, 240 Va. at 174, 395 S.E.2d at 457. Code
§ 17.1-402(D), recodifying Code § 17-116.02(D), allows this
Court to sit en banc:
upon its own motion at any time, in any case
in which a majority of the Court determines
it is appropriate to do so. The Court
sitting en banc shall consider and decide
the case and may overrule any previous
decision by any panel or of the full Court.
In Holland, we denied the defendant's petition for a rehearing
en banc on September 1, 1998. Thus, the holding of Holland
remains dispositive.
B. CONSTITUTIONAL CLAIM
Appellants next argue that their trespass notices were
issued in violation of the United States Constitution and,
therefore, cannot support their conviction under Code
§ 18.2-119. Appellants argue that individuals indefinitely
barred from the Loudoun House premises are denied their First
Amendment freedom of association and that the procedure followed
by the Leesburg police in issuing trespass notices violates
their constitutional right to due process. Assuming without
deciding that the issuance of a trespass notice by city police
pursuant to the authority given them by the property owner
constitutes state action, we find no merit in appellants'
argument.
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"The Fourteenth Amendment to the United States Constitution
provides that no person shall be deprived of life, liberty or
property without due process of law." Jackson v. W., 14 Va.
App. 391, 405, 419 S.E.2d 385, 393 (1992). "Procedural due
process rules are meant to protect persons not from the
deprivation, but from the mistaken or unjustified deprivation of
life, liberty, or property." Carey v. Piphus, 435 U.S. 247, 259
(1978). Due process analysis consists of two steps. See Klimko
v. Virginia Employment Comm'n, 216 Va. 750, 754, 222 S.E.2d 559,
563, cert. denied, 429 U.S. 849 (1976). First, a deprivation of
a liberty or property interest must be demonstrated. See J.P.
v. Carter, 24 Va. App. 707, 715, 485 S.E.2d 162, 167 (1997).
Then, "'[o]nce it is determined that due process applies, the
question remains what process is due.'" Id. (quoting Jackson,
14 Va. App. at 406, 419 S.E.2d at 393-94).
While the First Amendment does not, by its terms, protect a
"right of association," the United States Supreme Court has
recognized such a right in certain circumstances. Dallas v.
Stanglin, 490 U.S. 19, 23-24 (1989). In Roberts v. United
States Jaycees, 468 U.S. 609 (1984), the Court defined the right
at issue as follows:
Our decisions have referred to
constitutionally protected “freedom of
association” in two distinct senses. In one
line of decisions, the Court has concluded
that choices to enter into and maintain
certain intimate human relationships must be
secured against undue intrusion by the State
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because of the role of such relationships in
safeguarding the individual freedom that is
central to our constitutional scheme. In
this respect, freedom of association
receives protection as a fundamental element
of personal liberty. In another set of
decisions, the Court has recognized a right
to associate for the purpose of engaging in
those activities protected by the First
Amendment -- speech, assembly, petition for
redress of grievances, and the exercise of
religion. The Constitution guarantees
freedom of association of this kind as an
indispensable means of preserving other
individual liberties.
Id. at 617-18. The Court refers to these two categories of
protected associations as "intimate association" and "expressive
association," respectively. Id. at 618. In this case,
appellants failed to show how their barment from the premises of
Loudoun House deprives them of their First Amendment freedom of
association under either formulation of the right.
There can be no doubt that expressive free association is
an aspect of liberty protected by the Fourteenth Amendment. See
Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214
(1986) ("'It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an
inseparable aspect of the "liberty" assured by the Due Process
Clause of the Fourteenth Amendment . . . .'" (quoting NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958))); Bates v.
Little Rock, 361 U.S. 516, 523 (1960). However, the Supreme
Court recognizes the freedom of expressive association as a
means of giving full effect to other individual liberties.
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Roberts, 468 U.S at 622. The Constitution does not "recognize[]
a generalized right of 'social association.'" Stanglin, 490
U.S. at 25 (holding that encounters among patrons of dance halls
do not "involve the sort of expressive association that the
First Amendment has been held to protect").
The liberty interest in intimate association is rooted in
the necessity of affording:
certain kinds of highly personal
relationships a substantial measure of
sanctuary from unjustified interference by
the State. . . . [T]he constitutional
shelter afforded such relationships reflects
the realization that individuals draw much
of their emotional enrichment from close
ties with others. Protecting these
relationships from unwarranted state
interference therefore safeguards the
ability independently to define one's
identity that is central to any concept of
liberty.
Roberts, 468 U.S. at 618-19 (citations omitted). Among the
personal affiliations that have been deemed to merit such
constitutional protection are those that attend the creation and
sustenance of a family, such as marriage, childbirth, the
raising and education of children, and cohabitation with one's
relatives. See, e.g., Zablocki v. Rehail, 434 U.S. 374, 383-86
(1978); Carey v. Population Services International, 431 U.S.
678, 684-86 (1977); Smith v. Organization of Foster Families,
431 U.S. 816, 842-44 (1977).
Here, appellants failed to present facts demonstrating that
their interest in gaining access to the premises of Loudoun
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House implicates an interest protected by the First Amendment
right of association. Indeed, during and before trial,
appellants successfully moved to exclude the introduction of
evidence pertaining to the circumstances under which police
issued trespass notices barring them from the property and the
prosecution's case was confined to showing the conduct which
constituted the offense. As such, we find no basis for
concluding that the police action at issue here deprived
appellants of a liberty interest protected by the Due Process
Clause of the Fourteenth Amendment.
Accordingly, we affirm appellants' convictions.
Affirmed.
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