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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