In Johnson v. Commonwealth, 45 Va. App. 113, 609 S.E.2d 58 (2005), the trial court denied Johnson's motion to suppress heroin that had been found in his possession on two grounds: that the arresting officer "did not exceed the permissible limits of a weapons frisk," and that the heroin "would have been 'inevitably discovered' by the officer even if the weapons frisk had not taken place." Id. at 115.
But, on appeal, Johnson challenged that decision on only one ground - that "the trial court erred in finding the weapons frisk was within the scope of permissible Fourth Amendment limits." Id. at 115-16.
The alternative ground of the trial court's decision was left to the appellee to raise, and, after it did, no reply brief was ever filed. Id. at 116 n.1.
To reverse the trial court's judgment, it would have to, in effect, assume the role of an advocate, the Virginia court demurred. That is to say, it "would have to raise a challenge on Johnson's behalf" to the inevitable discovery ruling, and then marshal reasons to reject that doctrine as a basis for denying his suppression motion. Id. at 116.
In declining to do so, the court stated:
"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." Id.
And it warned that any other ruling would mean that "'an appellant could avoid the adverse effect of a separate and independent basis for the judgment by ignoring it and leaving it unchallenged.'" Id. at 116-17 (quoting San Antonio Press, Inc. v. Custom Bilt Machinery, 852 S.W.2d 64, 65 (Tex. App. 1993)).
Having rejected Johnson's invitation to engage in what the court believed was a flagrant example of judicial overreach, the Virginia court announced that it would "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.'" Id. (quoting United States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001)