Posted on February 03, 2021 in Criminal Defense

A state appellate court recently issued an opinion in a defendant’s appeal of his Virginia drug conviction. The case involved the "collective knowledge" doctrine, as it applies to searches and seizures under the 4th Amendment to the U.S. Constitution.

According to the court’s opinion, a confidential informant (CI), concerned with her daughter’s involvement with drugs, began communicating with a police investigator. The investigator testified that the CI stated that she shared a vehicle with her daughter that they agreed no one else could operate. The CI purchased a GPS tracking device and would contact the investigator to notify him of the car’s location.

On one occasion, the woman contacted the investigator and told him that the tracker showed the vehicle was at a motel; however, her daughter was in jail. The investigator was off-duty but went to the location to conduct surveillance. Upon reaching the location, he noticed that the woman’s car was empty, but two people were sitting in the SUV next to the vehicle. One of the individuals was the person the CI’s daughter was involved in drug transactions with, and the other was the defendant. The investigator contacted police dispatchers and told them to send an officer to address suspicious activity occurring in the vehicle. When police arrived, they discovered drugs.

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 Posted on January 20, 2021 in Criminal Defense

An appellate court recently issued an opinion following a Virginia criminal defendant’s charges involving sexual internet conversations and videos with an undercover detective posing as a minor. The defendant was charged with four counts of using a communications system to procure a minor and one count of soliciting a child believed to be under fifteen years old. The trial court granted the defendant’s motion to strike two of the four charges, and the jury convicted him of the remaining charges. Among several issues, the defendant argued that the court violated the wiretapping act and erred in denying his motion to suppress the conversations.

According to the facts, an undercover detective created a fake profile purporting to be a thirteen-year-old girl, and he was randomly paired with the defendant. Throughout the conversation, the defendant sent explicit messages and videos of an adult male engaging in sexual acts. The detective took screenshots of the chat but could not capture the video. The detective identified the defendant with information the man gave him during the chat. Shortly afterward, the Virginia SWAT team executed a search warrant and handcuffed the defendant. However, they then removed the handcuffs and told the defendant he was not under arrest. The detective and defendant spoke about the conversations and then asked for an attorney. After requesting the attorney, the defendant voluntarily gave statements about his family and potential charges.

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 Posted on January 05, 2021 in Criminal Defense

The Commonwealth has various statutes that govern Virginia gun offenses. The statutes delineate what constitutes a weapon or firearm, who can possess the weapon, and what processes the owner must go through to obtain and maintain a firearm legally. Further, criminal laws address what actions constitute a Virginia weapons offense and the commiserate punishment for violating a statute. These laws typically involve the complicated interplay between various statutes, and it is essential that those accused of a Virginia gun offense contact a dedicated criminal defense attorney.

For example, recently, the Court of Appeals of Virginia issued an opinion in the combined appeals of two defendants arguing that Virginia’s successive prosecution code bars their prosecutions for possession of a firearm by a convicted felon. In this case, two defendants argued that the court should dismiss their convictions for possession of a firearm as a convicted felon.

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 Posted on December 17, 2020 in Criminal Defense

Last month, a state appellate court issued an opinion in a Virginia DUI case, requiring the court to consider the defendant’s claim that police illegally seized her outside her home. However, the court held that law enforcement was justified in approaching the defendant while she was in her car that was parked in her driveway.

The Facts of the Case

According to the court’s opinion, a man standing with a group of people saw a car without its lights on making erratic movements. Once the car passed, the man hopped into his truck to follow the driver, thinking they may be intoxicated. The defendant, who was driving the car, stopped several times, but sped off when the man approached her vehicle. Throughout this "chase," the defendant clipped a telephone pole with her car before pulling into her driveway.

The man called police from inside his car, which was parked across the street from the defendant’s home. He watched the defendant inside her car until police arrived, and then confirmed that police were investigating the right person.

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 Posted on December 10, 2020 in Criminal Defense

Recently a state appellate court issued a decision in a defendant’s appeal regarding statements he made to police prior to his arrest in a Virginia assault case. The case arose when police questioned the defendant about his involvement in a shooting while he was receiving treatment for a gunshot wound at a hospital. Hospital staff contacted police after admitting the man for a gunshot wound. Initially, detectives were unsure whether the defendant was a victim or a perpetrator. There were four detectives and a security guard present while two detectives questioned the defendant about his involvement. During questioning, the defendant’s family member arrived and remained in the room.

Additionally, hospital staff continued to provide medical treatment and collect identification and insurance information from the defendant. Following the questioning, the detective went to another hospital to interview two shooting victims who were believed to be involved in the incident. At that point, they discovered that the defendant was the perpetrator. After the defendant was discharged from the hospital, detectives escorted him to the police department, advised him of his Miranda rights, and arrested him. On appeal, the defendant filed a motion to suppress the statements he made to the detectives at the hospital. He argued that his statements were made in the absence of a Miranda warning.

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 Posted on November 24, 2020 in Criminal Defense

Recently, a state appellate court issued a written opinion in a Virginia drug crime case discussing whether the arresting officer legally stopped the defendant’s vehicle. Ultimately, the court concluded that the stop was illegal, and ordered the suppression of all evidence recovered as a result. The case illustrates when an officer’s mistake can result in the suppression of evidence.

The Facts of the Case

According to the court’s opinion, the defendant was driving in the right-hand lane on Route 360. As he approached an intersection, the defendant changed lanes into the center lane. In doing so, he crossed a single, solid-white line indicating the beginning of the intersection. There were two other cars on the road at the time, but neither was directly behind the defendant.

A police officer was traveling about 100 feet behind the defendant, when he observed the defendant’s lane change. Believing that the Virginia law prohibits a driver from crossing a solid-white line when changing lanes, the officer pulled the defendant over. The officer recovered drugs as a result of the traffic stop.

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 Posted on November 04, 2020 in Criminal Defense

Earlier this month, a state appellate court issued a written opinion in a Virginia rape case discussing whether the seizure of the defendant’s DNA was in violation of his constitutional rights. Ultimately, the court concluded that the defendant abandoned any expectation of privacy he had in the items containing his DNA when he placed them in the trash outside his home.

The Facts of the Case

According to the court’s opinion, the case arose from an incident in 1995, in which a man in a ski mask broke into an apartment and forced two women inside to perform oral sex. At the time, law enforcement obtained a DNA sample, but had nothing to compare the sample to. Years later, in 2016, a woman called the police explaining that her husband, the defendant, told her he was the “Fairfax County Rapist.” He explained that he would use a black ski mask and hold his victims at gunpoint as he demanded oral sex.

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 Posted on October 23, 2020 in Criminal Defense

Getting pulled over by the police is stressful, even for those who have done nothing wrong. However, for drivers who have had a few drinks, the experience can be terrifying. One of the most common questions we get related to Virginia DUI offenses is what a driver’s rights are when it comes to refusing a breath test.

Under Virginia’s implied consent law, drivers agree to submit to a chemical test when a police officer suspects that they are intoxicated. Thus, legally, drivers do not have the right to refuse a breath test. However, a police officer cannot physically force a motorist to blow into a breathalyzer. If a driver will not take a breath test when requested, it is called a refusal.

The first step to understanding Virginia’s implied consent rule is to know the difference between the two types of Virginia breath alcohol tests. The first test, which is administered by police on the side of the road, is called the preliminary breath test (PBT). The results of a PBT are not admissible in court, and the purpose of a PBT is to help the officer determine if someone may be intoxicated. There is no punishment for refusing a PBT; however, doing so may prompt the officer to look a little closer for signs of intoxication that may justify a DUI arrest.

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 Posted on October 06, 2020 in Criminal Defense

Earlier this year, a state appellate court issued a written opinion in a Virginia reckless driving case, reversing the defendant’s conviction based on a lack of evidence. The court based its decision on the fact that the evidence presented failed to show that the defendant acted recklessly when he struck a motorcycle from behind at nearly 50 miles per hour.

The Facts of the Case

According to the court’s opinion, the defendant was driving a car on a clear day when he struck a motorcycle from behind. The motorcyclist was stopped, waiting to make a left-hand turn into his home. A truck driver coming from the opposite direction as the defendant witnessed the accident. He explained that the defendant’s car did not appear to slow down or swerve before it hit the motorcyclist.

The motorcyclist died as a result of the injuries he sustained in the accident, and the defendant was charged with reckless driving. A jury convicted the defendant, who appealed his conviction. On appeal, the defendant argued that there was insufficient evidence to prove that he was reckless.

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 Posted on September 21, 2020 in Criminal Defense

In the wake of the COVID-19 pandemic, Virginia courts all but shut down, hearing only emergency matters for many months. However, in recent weeks, courts have begun to re-open to address the backlog of cases that has resulted from the months-long shutdown. As courts open up, many Virginia criminal defense attorneys are concerned about the ability of a defendant to receive a fair trial given the challenges of conducting a trial during the COVID-19 pandemic.

Holding a jury trial during the pandemic gives rise to several potentially serious problems, as it is difficult to ensure that a defendant’s constitutional rights are adequately protected. The following are among the concerns that the COVID-19 pandemic presents to those facing serious criminal charges:

Right to a fair jury – Under the Sixth Amendment to the United States Constitution, criminal defendants are guaranteed the right to a trial by a jury of their peers. Subsequent case law further requires that a jury is composed of a fair cross-section of society. Some have raised concerns that a large number of people will fear the health risks of serving on a jury during the COVID-19 pandemic. Conducting a jury without these people, many of which may be more liberal-leaning, could result in a jury with a more conservative slant, potentially depriving a defendant of their right to a fair and impartial jury.

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