Posted on June 30, 2021 in Criminal Defense

A defendant recently appealed his Virginia conviction for possession of marijuana and various firearm offenses. The accused filed multiple motions to suppress, arguing that he had a reasonable expectation of privacy in the residence. On appeal, the court reviewed the evidence the defendant presented at his suppression hearing.

According to the record, police officers discovered the defendant’s location and attempted to serve outstanding arrest warrants. The home belonged to the mother of the defendant’s minor daughter; the defendant did not own or rent the home. When the defendant did not open the door for law enforcement, the officers entered the residence. The officers did not find the accused, but after detecting the smell of marijuana, they searched the residence and found him hiding near a shed.

The defendant argued that because he did not live at the home, the officers could not “enter and search the home of a third party” under a warrant for the defendant. The Commonwealth argued that they believed the accused lived at the home with the mother of his child. In the alternative, the Commonwealth argued that the defendant could not assert the “vicarious Fourth Amendment” rights of a third party.

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 Posted on June 16, 2021 in Criminal Defense

Recently, the state supreme court issued an opinion in a case involving a man who allegedly fired a gun while celebrating the 4th of July. The case required the court to determine if the defendant’s statements to a detective were taken in violation of his constitutional rights. Ultimately, the court dodged the question at issue, finding that even if the lower court’s ruling was incorrect, any error stemming from the decision was harmless.

The Facts of the Case

According to the court’s opinion, police received a call reporting gunshots on the 4th of July. Upon responding to the scene, officers spoke with two witnesses. One of the witnesses provided the officers with time-stamped video surveillance footage showing a man carrying a small black object in his hand.

Based on the footage, officers arrested the defendant and took him down to the station for questioning. While there, the defendant asked a detective, “Hey, can you call my wife to tell her to call my lawyer for me?” The detective indicated he would call the defendant’s wife. However, before he did, another detective came into the room and read the defendant his Miranda warnings.

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 Posted on June 09, 2021 in Criminal Defense

The United States Supreme Court recently decided a case that may have a profound impact on many Virginia criminal cases. Although the case is civil in nature, it impacts state and federal search and seizure law.

The case arose following a 2015 altercation between a woman and her husband. The wife was concerned for her husband’s safety after he made disturbing remarks during an argument. In response, she called the police, and they offered to escort him to a local hospital for evaluation. The husband agreed on the condition that the police would not confiscate his handguns. The police agreed but then confiscated the handguns. The man filed a civil lawsuit against the police department after they failed to return the handguns.

A federal appeals court upheld the handgun seizure under the “community caretaking” exception to the Fourth Amendment. The appeals court reasoned that law enforcement officers are “masters of all emergencies” and, as such, they need some “elbow room” to engage determine the appropriate action in these situations. Following that decision, the man petitioned the Supreme Court to review the matter. The Supreme Court was tasked with answering whether the “community caretaking” exception extends to police officer’s entry into a private citizen’s home.

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 Posted on May 20, 2021 in Criminal Defense

The Supreme Court of Virginia recently issued an opinion overturning an accused’s Virginia conviction for operating a vessel while under the influence. According to the record, the Virginia Marine Resource Commission (VMRC) noticed the accused operating his boat without a white running light. When the VMRC attempted to stop the man, he accelerated, ran the vessel into the ground, and jumped out. After reaching the accused, the VMRC arrested him for operating a vessel under the influence. The accused refused to take a breath or blood test.

At trial, the man attempted to introduce evidence regarding the lawfulness of his arrest; however, the lower court found that he had forfeited his right because the law required him to do so before trial. Following a conviction, the accused appealed under Virginia Code § 29.1-738.2, contending that the trial court erred in denying him the ability to present evidence to support his challenge to the lawfulness of his arrest.

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 Posted on May 05, 2021 in Criminal Defense

Under the Fourth Amendment, individuals have the right "to be secure in their houses…against unreasonable searches and seizures." As the doctrine currently stands, inquiries involving whether a search is constitutional requires the court to look at the "totality of the circumstances." This vague language significantly impacts those charged with Virginia criminal offenses. Most jurisprudence scholars agree that this inquiry leaves courts with vast and unpredictable discretion in determining the rights of one accused of a crime. This inquiry is most relevant when one accused of a Virginia crime argues that police engaged in an unlawful search of their car or home.

The Supreme Court ruling in Cady v. Dombrowski held that law enforcement may search a vehicle without obtaining a warrant in some situations. This exception applies under the "community caretaking" function, and the ruling was explicit that the exception only extends to motor vehicles and not people’s homes. However, officers in some jurisdictions improperly invoke the community caretaking exception to justify warrantless entries into homes. As a result of the overreaching, the Supreme Court is now tasked with clarifying the original meaning of the right to "be secure" and address the reach of the community caretaking exception.

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 Posted on April 20, 2021 in Criminal Defense

The Supreme Court of the United States recently issued an opinion in Torres v. Madrid, finding that the “application of physical force to the body of a person with the intent to restrain is a seizure even if the person does not submit and is not subdued.” The ruling will likely have a significant impact on Virginia criminal appeals involving Fourth Amendment violations. The case arose when state police officers approached a vehicle that was in a parking spot with its engine on. When the officers attempted to speak to the driver, the driver sped away-believing the officers to be carjackers. In response, the officers fired their weapons, striking the victim twice. The woman switched vehicles and drove to a hospital. The woman was arrested the following day, and she pleaded no contest to three criminal offenses.

The woman filed a civil rights lawsuit against the officers, arguing that the shooting was an unlawful seizure and a violation of her Fourth Amendment rights. The lower court concluded that the officers were entitled to qualified immunity. The court reasoned that the officers did not “seize” Torres when the shooting occurred, and without the requisite “seizure,” a Fourth Amendment violation could not exist.

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 Posted on April 06, 2021 in Criminal Defense

Recently, a state appellate court issued a written opinion in a Virginia obscenity case involving a defendant who allegedly videotaped an eight-year-old girl while she was changing. The case required the court to determine whether the defendant violated the law by filming the young girl without her knowing, meaning she neither provided consent nor told the defendant that he did not have consent.

The Facts of the Case

According to the court’s opinion, the defendant was dating a woman who had an eight-year-old daughter from another relationship. One day, the woman was looking through the defendant’s phone and found two videos of her daughter in various states of undress. From how the camera was positioned, it appeared that the video was taken from under the girl’s bedroom door. The woman obtained a copy of the videos and eventually contacted the police.

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 Posted on March 18, 2021 in Criminal Defense

The Virginia criminal justice system is a complex institution that often leaves criminal defendants confused about their rights and remedies. In most Virginia criminal cases, a defendant can appeal a conviction after a court or jury finds them guilty. The United States Constitution and state laws govern what cases and issues a defendant may appeal. Many defendants unknowingly forfeit their rights to appeal because of the fundamental disparity in power during these proceedings. Appeals can take a significant amount of time, and it is essential that criminal defendants seek assistance to ensure that they present all relevant appeals to the court.

In some cases, a criminal defendant may appeal several issues based on various procedural or statutory errors. For instance, recently, a Virginia defendant appealed his conviction based on eight issues. The defendant appealed his drug possession with intent to distribute conviction and his revocation of a suspended sentence. His crux of the appeal was based on an alleged violation of his Fourth Amendment rights and his assertion that the Commonwealth made erroneous additions to his transcript.

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 Posted on March 04, 2021 in Criminal Defense

Last month, a state appellate court issued an opinion in a Virginia drug case involving a defendant’s motion to suppress drugs that were recovered by police under the driver’s seat of a car he occupied. The defendant claimed that the officers’ search of the car violated his constitutional rights. However, the court disagreed, affirming his conviction.

The Facts of the Case

According to the court’s opinion, officers received a call for a "disorderly situation" involving two males and one female. The caller told the 911 operator that one of the people had a gun.

When officers arrived on the scene, they saw two vehicles, parked facing one another. Officers parked on the street, and walked towards the vehicle. As they approached the white car, they saw the defendant in the driver’s seat. When he looked up, he immediately lunged towards the floorboard for a few seconds before getting out of the vehicle.

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 Posted on February 17, 2021 in Criminal Defense

Recently, a state appellate court issued a written opinion in a Virginia weapons offense case, requiring the court to determine if a knife counts as a "weapon" under the language of Virginia Code section 18.2-308(A). Ultimately, the court concluded that a knife falls within the category of prohibited items, affirming the defendant’s conviction.

The Facts of the Case

According to the court’s opinion, a young boy was playing football near the defendant’s car. At some point, the boy nearly hit the car with the football. The defendant got upset, and told the boy, "hit my car again and see what happens." The defendant left, returning with a metal knuckle knife. Initially, the defendant held the knife at his side, but raised it as he approached the boy. The defendant then lifted the boy up and pretended to stab him in the chest and stomach before putting the boy down.

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