Don’t you love analyzing a “reasonable” standard?

It’s similar to every lawyer’s favorite answer: It depends. Reasonableness truly varies with the facts and the governing principles at play. And in the Supreme Court’s latest case, we have multiple courts (and some very smart judges and justices) disagreeing. As a silver lining, when reasonable people can disagree, it does tend to keep us all in business.

Key takeaways:

• Don’t lose sight of the standard of review. It is the backbone of your appeal. And when it’s bad for you? Own it—don’t hide from it.
• If you’re a criminal practitioner dealing with a strip search case, pay attention to this one.

The Opinion

Have you ever wanted to fully understand the difference between strip searches and manual body cavity searches? No? Me neither. Fortunately for us, Commonwealth v. Hubbard doesn’t require us to probe any further (ugh, sorry for the visual). Before my civil practitioners stop reading, there’s an important reminder about the standard of review for us all in this Opinion.

Justice Kelsey reminds us to start with the bedrock principle that the 4^th Amendment prohibits unreasonable searches and seizures. Here, the SCV reversed the Court of Appeals—which had improperly determined a criminal defendant’s motion to suppress should have been granted.

Here’s the summary: Police pulled the defendant over and later performed a search incident to arrest. During the search, an officer felt a large “rock-like” object in the defendant’s boxer shorts. The defendant resisted the officer’s attempts to seize the contraband. The officer was concerned both that evidence could be destroyed and that the hidden substance could contain fentanyl—which could be deadly to all involved. During the search, the defendant’s shorts were pulled down, and the officers had looked in the defendant’s pants. Police recovered 87 smaller bags of crack cocaine hidden in the one larger item.

The SCV dodged having to delineate which type of search this was. No matter how this search was labeled, the officer’s conduct was both reasonable and justified.

The SCV repeatedly cited to the joint appendix, something it doesn’t always do. In addition to determining the CAV had misapplied the law, it criticized the CAV for failing to view the evidence in the light most favorable to the Commonwealth—the prevailing party at trial. The SCV put one specific fact from the CAV opinion that it disagreed with, noting that it believed the lower court failed to properly apply the standard of review.

The standard of review is key.

What’s the takeaway? For criminal practitioners who deal with strip searches, be sure to read this one. But for the rest of us: Keep in mind how important the standard of review is.

If a trial court says nothing about a particular fact, the appellate court takes the winner’s version. It doesn’t help us as advocates not to recognize the bad facts. Acknowledge them. Then work within the standard of review to strategize your best move.

Please don’t mistake candor on these important points as a sign of defeat. A statement of facts can still favor your client and emphasize their perspective. In fact, this is where the best appellate lawyers shine.

I had opposing counsel recently manage this very well (I won’t share who they are but…touché!). Bryan Garner also offers good advice on this front. If you haven’t read “The Winning Brief” recently, it’s worthwhile to review. A few tips: We shouldn’t dwell on bad facts but tell the court why you should still win. It may be helpful to try this: “Although [bad fact or bad law], . . .” 

It’s an art, not a science. And like anything, it takes practice. But you can do it.

P.S. For anyone who loves a good “why me” moment, I’ll share my own. Not long after my proofreading blog post, I ignored my own advice and made a major last-minute edit. As soon as I filed, I saw my new typo. Tell me I’m not alone.