PRESENT: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Lacy, S.J. 

GUY ANTHONY BANKS, JR. 

 OPINION BY 

v. Record No. 092455 JUSTICE LEROY F. MILLETTE, JR. 

 November 4, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Guy Anthony Banks, Jr. was convicted of possessing a 

firearm after having been convicted of a felony, in violation 

of Code § 18.2-308.2. Before trial, he moved to suppress the 

gun and the jacket in which it was discovered as the fruits of 

an unlawful seizure. The circuit court denied the motion. The 

Court of Appeals, in an unpublished opinion, affirmed, but on a 

different ground — a ground neither urged by the Commonwealth 

nor addressed by the circuit court. We consider whether the 

Court of Appeals erred in affirming on the alternative ground 

that Banks consented to the seizure by requesting a jacket 

following his arrest on other charges. 

BACKGROUND

 On November 15, 2007, Officers K.S. Mitchell and T.C. 

Clements of the Lynchburg Police Department arrested Banks in 

the City of Lynchburg pursuant to multiple warrants that had 

been issued the previous day as a result of an investigation of 

an attempted robbery and shooting. Although the warrants 

listed Banks’ address as 505 Jones Street, the officers 
ultimately found him at a home located on 820 Brook Street. 

When they arrived at the home, Officer Mitchell knocked on the 

front door, and a woman answered. Officer Mitchell asked her 

whether Banks was in the home, and she motioned to the 

upstairs. Officers Mitchell and Clements, along with another 

officer, then entered the home and started up the stairs. Upon 

reaching the top step, they encountered another woman. When 

they asked her where Banks was, she pointed to a bedroom and 

called out his name. Banks then emerged from the bedroom, and 

the officers took him into custody in the doorway. 

 At the time of his arrest, Banks was wearing a longsleeved t-shirt and mesh shorts, but no shoes or socks. 

Officer Mitchell testified that it was “a rather cold day,” so 

he asked Banks, who had been handcuffed, “if he wanted to grab 

his shoes or a jacket” before going outside to the patrol car. 

According to Officer Mitchell, Banks responded, “yes,” and the 

officers escorted him back to the bedroom. Upon stepping 

inside, however, Banks told the officers that his shoes were in 

his car. Officer Mitchell then led Banks outside, collected 

his shoes, and placed him in the patrol car. 

 While Officer Mitchell was accompanying Banks outside, 

Officer Clements remained upstairs talking with a woman who had 

been in the bedroom with Banks. Officer Clements did not hear 

Officer Mitchell ask Banks if he wanted a jacket, and Officer 

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Clements “didn’t ask [Banks] anything about that.” 

Nonetheless, Officer Clements decided to get Banks one because 

he was inappropriately dressed for the weather, which Officer 

Clements described as “45 degrees, [with] 20 to 25-mile-an-hour 

winds.” Officer Clements asked the woman in the bedroom if 

Banks had a jacket, and she pointed to one that was hanging on 

the top of the closet door. Officer Clements grabbed the 

jacket and began searching its pockets for “anything 

dangerous.” “As soon as [he] put [his] hand into the right 

pocket, [he] felt the butt of a gun.” He then immediately 

pulled his hand out, looked inside, and saw a revolver. At 

that point, Officer Clements notified Officer Mitchell, and he 

seized the jacket and gun. 

 Banks was indicted on multiple charges, including two 

counts of possession of a firearm by a convicted felon, in 

violation of Code § 18.2-308.2. Prior to trial, Banks moved to 

suppress the jacket and gun, claiming that they were seized in 

violation of the Fourth Amendment because the officers had no 

authority to reenter and search the bedroom after his arrest. 

 At the suppression hearing, the Commonwealth advanced four 

arguments for why Banks’ motion should be denied: (1) Banks 

lacked standing to challenge the seizure; (2) Banks’ state of 

undress created an exigency justifying the seizure; (3) the 

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seizure was pursuant to a search incident to a lawful arrest; 

and (4) the gun would have been inevitably discovered. 

 The circuit court addressed each of the Commonwealth’s 

arguments. First, it ruled that Banks had standing because he 

had a reasonable expectation of privacy in the bedroom. 

Second, it found no evidence that the officers would have 

inevitably discovered the gun. Third, it concluded that the 

seizure did not arise out of a search incident to a lawful 

arrest. Lastly, it considered whether Banks’ inappropriate 

dress presented an exigency justifying the seizure of the 

jacket and, relying on United States v. Gwinn, 219 F.3d 326 

(4th Cir. 2000), held that it did. Accordingly, the circuit 

court denied Banks’ motion. Banks was then tried without a 

jury and convicted of one count of possession of a firearm by a 

convicted felon.∗

 The Court of Appeals, in an unpublished opinion, affirmed 

the denial of Banks’ motion to suppress. Banks v. 

Commonwealth, Record No. 3059-08-3 (Nov. 10, 2009). It did so, 

however, on a ground that was neither argued by the 

Commonwealth nor considered by the circuit court. Accepting 

Officer Mitchell’s version of events, the Court of Appeals 

first found that “Banks agreed he wanted a jacket and shoes 

 ∗ The two counts in the indictment were merged after the 

circuit court granted Banks’ motion to strike in part.

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and, therefore, consented to the retrieval of the jacket from 

his bedroom, which he willingly re-entered with the officers.” 

Id., slip op. at 4. The Court of Appeals then considered 

whether Banks’ consent was valid and, after finding “no 

evidence in the record of involuntariness or exploitive, 

unconstitutional conduct,” concluded that it was. The Court of 

Appeals thus held that “the seizure of the jacket was lawful 

under the Fourth Amendment as authorized by Banks’ consent.” 

Id., slip op. at 4-5. We awarded Banks this appeal. 

DISCUSSION

Relying on our recent decision in Whitehead v. 

Commonwealth, 278 Va. 105, 677 S.E.2d 265 (2009), Banks 

contends that the Court of Appeals erred in affirming the 

denial of his motion to suppress on the ground that he 

consented to the seizure because the Commonwealth did not argue 

consent as an independent basis for upholding the seizure, and 

because the circuit court did not make findings as to consent. 

In response, the Commonwealth maintains that the Court of 

Appeals’ decision did not contravene Whitehead because the 

issue of consent was raised in the circuit court, albeit 

“inartfully,” and because “the facts in the record fully 

support the conclusion that Banks consented to the seizure of 

his jacket.” 

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We have long said that “[w]e do not hesitate, in a proper 

case, where the correct conclusion has been reached but the 

wrong reason given, to sustain the result and assign the right 

ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 

(1963) (citations omitted). But in Whitehead, we limited the 

application of the “right result for the wrong reason” doctrine 

to “cases in which the party seeking affirmance” argued the 

“right ground” to the circuit court. 278 Va. at 114, 677 

S.E.2d at 270 (internal quotation marks omitted). Today, in 

Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 

(2010) (this day decided), we recognize and correct that 

misstep: 

[U]pon reconsideration of the case law on this 

matter, we are of the view that this principle 

. . . is inconsistent with prior case law, and is 

inconsistent with case law that followed it. Failure 

to make the argument before the trial court is not 

the proper focus of the right result for the wrong 

reason doctrine. Consideration of the facts in the 

record and whether additional factual presentation is 

necessary to resolve the newly-advanced reason is the 

proper focus of the application of the doctrine. 

Thus, we must consider whether the record supports the Court of 

Appeals’ conclusion that Banks consented to the seizure. 

Before beginning our analysis, however, we must clarify 

what it means to say that the record supports an alternative 

ground for affirmance. The record supports an alternative 

ground when it reflects that all evidence necessary to that 

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ground was before the circuit court. And if that evidence was 

conflicting, then the record must show how the circuit court 

resolved the dispute — for example, it must demonstrate how 

contradicting testimony was weighed or credited. 

In affirming the denial of Banks’ motion to suppress on an 

alternative ground, the Court of Appeals concluded that Banks 

consented to the seizure of the jacket. The facts surrounding 

the seizure, however, were in dispute; and the circuit court 

made no findings as to consent, resolving the motion on a 

separate, independent ground: exigent circumstances. 

The Court of Appeals found consent based on the testimony 

of Officer Mitchell, who claimed that Banks answered “yes” when 

asked if he wanted to grab shoes and a jacket before going 

outside to the patrol car. But the record also reflects that 

Banks testified that he never asked for a jacket, and that 

Officer Clements, who was at Officer Mitchell’s side, did not 

know whether Banks had been asked if he wanted a jacket. 

Indeed, Officer Clements testified that he grabbed the jacket 

not because Banks had requested one, but rather because it was 

cold outside. 

To be sure, as the Court of Appeals noted, the general 

rule on review is that the evidence is viewed in the light most 

favorable to the prevailing party below. Banks, slip op. at 2 

n.3 (citation omitted). But, as discussed above, when 

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considering whether the “right result for the wrong reason” 

doctrine should be applied, the standard of review is whether 

the record demonstrates that all evidence necessary to the 

alternative ground for affirmance was before the circuit court 

and, if that evidence was conflicting, how it resolved the 

dispute, or weighed or credited contradicting testimony. 

In this case, the record shows that the facts surrounding 

the seizure were in conflict and that the circuit court neither 

resolved the dispute nor indicated how it weighed or credited 

the contradicting testimony as to whether Banks asked for a 

jacket. As a result, the Court of Appeals was in no position 

to find that he consented to the seizure, especially 

considering that it did not “ha[ve] an opportunity to observe 

the witnesses, their candor, manner and demeanor, and thereby 

to determine the weight to be accorded their testimony.” 

Dailey v. Commonwealth, 208 Va. 452, 455, 158 S.E.2d 731, 733 

(1968). 

Because the record in this case demonstrates that the 

evidence as to whether Banks consented to a seizure of the 

jacket was conflicting and that the circuit court did not 

resolve the dispute, we hold that the Court of Appeals erred in 

applying the “right result for the wrong reason” doctrine to 

affirm the denial of his motion to suppress on the alternative 

ground that he consented to the seizure of the jacket. 

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CONCLUSION

For the foregoing reasons, we will reverse the judgment of 

the Court of Appeals and remand this case. On remand, the 

Court of Appeals is directed to consider the issue with which 

it was presented: whether the circuit court erred in holding 

that Banks’ state of undress presented an exigency justifying 

the officers’ seizure of the jacket. 

Reversed and remanded.

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