Christian Dante Blaylock v. Commonwealth of VA ( 1999 )


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  •                   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.
    - 7 -
    "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.
    - 9 -
    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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