McCauley v. Commonwealth

Benton, X,

dissenting.

The trial judge upheld the stop in this case relying upon this Court’s decision in Simmons v. Commonwealth, 6 Va. App. 445, 371 S.E.2d 7 (1988). At the time the trial judge ruled in this case, Simmons had been overruled three years earlier by the Supreme Court. See Simmons v. Commonwealth, 238 Va. 200, 380 S.E.2d 656 (1989). All of the reasons that the trial judge relied upon were considered and overruled by the Supreme Court. The majority opinion ignores the patent error by the trial judge and concludes that the trial, judge’s decision can be upheld for other reasons. I…