Posted on July 25, 2021 in Criminal Defense

Earlier this year, a state appellate court issued a written opinion in a Virginia case involving a woman convicted of driving on a suspended license. The appeal involves the lower court’s decision preventing the defendant from pursuing an appeal of her conviction. Ultimately, the court concluded that the defendant’s appeal was proper and that the lower court should not have precluded her from bringing her appeal.

The Facts of the Case

According to the court’s opinion, the defendant was issued a summons on July 15, 2016, indicating that she was charged with driving on a suspended license. It was her fifth offense. The woman was convicted and filed an appeal with the circuit court. Defendants convicted in the district court have an automatic right to a new trial in circuit court.

In her appeal, the defendant raised several challenges to her conviction. However, the circuit court rejected each of her claims, and she was again convicted. The defendant then filed another appeal, this time to the appellate court. She referenced the circuit court case in her filing, naming a county official as the "appellee," which is the party who is supposed to respond to the appeal.

Continue Reading ››

 Posted on July 11, 2021 in Criminal Defense

Recently, a state appellate court issued a written opinion in a Virginia gun case discussing whether a detective’s warrantless search of a phone violated the defendant’s protection against unreasonable searches and seizures. Ultimately, the court concluded that the search was legal and that the motion to suppress was rightfully denied by the lower court. The case illustrates when evidence obtained from a detective’s warrantless search can still be used in the trial.

The Facts of the Case

According to the court’s opinion, while attempting to retrieve his phone from inside the restaurant, the defendant approached a waitress in a very hostile manner. A private security guard stepped in front of the defendant, and the defendant eventually urged his friend to grab a gun from the car. The security guard drew his own weapon and asked the individual to drop his firearm. The individual put down the gun. Defendant then picked up the firearm and began firing his gun. The security guard fired back and struck the vehicle, prompting the defendant and his friend to drive away. The defendant did not return.

Continue Reading ››

 Posted on July 03, 2021 in Criminal Defense

Traditionally, when a defendant seeks to challenge the legality of his arrest, he does so in a motion to suppress. In a motion to suppress, the court hears evidence about the recovery of the evidence in question and determines whether the state or federal constitution requires the suppression of the evidence.

However, in a recent case before the Supreme Court of Virginia, the court reversed the conviction of a defendant who was arrested for DUI. The facts of the case are straightforward: police attempted to stop a boater, who sped away and eventually ran ashore. The boater got out and ran. Law enforcement eventually caught him and ultimately charged him with operating a boat under the influence. The defendant refused a breath or blood test.

The defendant did not file a pre-trial motion to suppress. Instead, at trial, the defendant attempted to argue that his arrest was unlawful. However, the prosecution objected, claiming that the defendant waived his right to challenge the legality of his arrest by not filing a motion to suppress. The trial court agreed, prevented the defendant from challenging the lawfulness of his arrest, and then convicted him. The defendant appealed.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››

 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.

Continue Reading ››