Posted on July 21, 2020 in Criminal Defense

In a recent opinion, a Virginia appellate court upheld a trial court’s decision not to suppress evidence the defendant claimed to be the product of an illegal search and seizure. This decision provides valuable insight on a third-party’s ability to consent to the search of another’s property under Virginia criminal law.

According to the court’s opinion, the case involved the seizure of drugs, cash, and ammunition from an apartment. The apartment belonged to a woman who had called the police on the defendant, who was her boyfriend. When the police arrived the defendant falsely identified himself, so the officers placed him under arrest. The police then asked the defendant’s girlfriend whom the apartment belonged to. She replied that she was the sole lessee and gave the officers permission to search the apartment.

When the officers got inside the apartment, they found a pile of bags in the foyer, which the girlfriend identified as belonging to the defendant. The officers searched the bags and found more than $14,000 in cash. The officers also searched a red varsity jacket belonging to the defendant, and found an unmarked bottle containing several dozen pills. When the officers searched the rest of the apartment they found a purple suitcase with more than a dozen pounds of marijuana and a safe, which was later found to contain additional cash and several rounds of 9mm ammunition.

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 Posted on July 06, 2020 in Criminal Defense

Earlier this year, a state appellate court issued a written opinion in a Virginia gun case discussing the inevitable discovery rule, which allows the admission of evidence that was otherwise illegally obtained. The justification for the rule is that, even without a police officer’s illegal actions, the evidence at issue would have eventually been discovered through legal means.

The Facts of the Case

According to the court’s opinion, two police officers stopped a car because it had no license plates on the front or rear of the vehicle. Initially, the officers did not notice any indications that there was contraband in the car. The officers took the defendant’s license back to their car to run it for warrants. During this time, the two officers could be heard discussing ways they could search the defendant’s car. One officer suggested they ask for consent, and that if the defendant refused permission, then “there’s definitely something in that ******* car!”

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 Posted on June 18, 2020 in Criminal Defense

The novel coronavirus, or COVID-19, has affected more than the two million people who have been infected with the virus, and the more than 110,000 people who have died from it. The government’s response to the virus has impacted every American in unimaginable ways. From school and business closures to stay-at-home orders, the last few months have been challenging for everyone, even those who were fortunate enough to remain healthy.

The latest changes Virginians are facing is a new law that requires they wear cloth coverings over their face. The Centers for Disease Control have recommended that the use of masks reduces the spread of COVID-19. However, the choice to wear a mask remained optional until recently. Last month, Governor Ralph Northam signed an executive order requiring Virginians to wear cloth coverings – or face masks – while in certain public places. The objective of the new executive order is to reduce the spread of COVID-19, which, as of early June, had infected nearly 50,000 people in Virginia and claimed over 1,500 lives.

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 Posted on June 05, 2020 in Criminal Defense

Beginning in February of this year, the COVID-19 pandemic rapidly swept across the country, spreading to all fifty states within a matter of days. In response to the pandemic, state and local governments have enacted laws to require residents to do their part to stop the virus from spreading. One of the best ways to prevent COVID-19 from spreading is to maintain a social distance of at least six feet, and to wear a cloth mask that covers the face.

In Virginia, Governor Ralph Northam recently signed an executive order requiring many Virginians wear masks when they are out and about. According to Executive Order 63, those who are ten years old and older must wear a cloth mask over their face in certain settings. The mask must cover their nose and mouth, as described by the Centers for Disease Control.

Notably, masks do not need to be work every time someone is in public. Executive Order 63 clarifies that masks only need to be work in the following situations:

• When visiting personal care and personal grooming businesses, including barbershops, spas, tattoo shops, massage centers, and beauty salons;

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 Posted on May 25, 2020 in Criminal Defense

Earlier this month, the state’s high court issued a written opinion in a Virginia homicide case involving the defendant’s challenge to the manner in which the police obtained the evidence that resulted in his conviction for murder. Ultimately, the court concluded that the police officers’ actions in entering the defendant’s home were reasonable, based on the "emergency aid" exception to the Fourth Amendment.

The Facts of the Case

According to the court’s opinion, a man received a text from his brother, the defendant, explaining that he had recently been struggling and that he was about to join their deceased mother. The defendant’s brother tried to get ahold hold of the defendant with little success, and eventually called the police to the defendant’s home.

The defendant’s brother explained his concern and showed the police the text message his brother had sent him. Police approached the defendant’s door and knocked. The defendant answered, but shortly after, police began to hear a "gargling sound mixed with some coughing and moaning, like pain." Police asked to enter, but there was no response.

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 Posted on May 13, 2020 in Criminal Defense

Earlier this year, a state appellate court issued a written opinion in a Virginia DUI case involving the defendant’s motion to suppress. Specifically, the defendant argued that the officer who pulled him over did not have reasonable suspicion to do so, and the trial court should have suppressed evidence that was recovered as a result of the stop. However, the appellate court disagreed with the defendant’s argument, finding that the traffic stop was supported by probable cause, affirming the defendant’s conviction.

The Facts of the Case

According to the court’s written opinion, police received a "be on the lookout" call reporting a man driving towards Bowling Green in a small green sedan to go get more beer. An officer went to one of the three businesses in Bowling Green that sells beer, and observed a small green sedan pull into the parking lot. There was one man inside, the defendant, drinking from a can. As the officer pulled closer, the defendant drove off.

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 Posted on April 27, 2020 in Criminal Defense

The COVID-19 pandemic is shedding light on how quickly infections spread in confined areas, such as in Virginia prisons and jails. Older adults and those with certain medical conditions are at a heightened risk of experiencing severe and potentially life-threatening illnesses after exposure to COVID-19. Given the accelerating rate of COVID-19 infections throughout the world, it is inevitable that almost every Virginia prison and jail will experience an outbreak to some degree. The rapid spread of the disease may have devastating effects on the well-being of those who work or are confined to Virginia prisons and jails.

In response to the growing concern of the health and safety of incarcerated individuals, corrections officers, and those that live in communities near these facilities, the World Health Organization (WHO) has provided guidance for responding to COVID-19 outbreaks in detention facilities. Included in this guidance is the importance of wide-scale testing, screening, and treatment for the infection. Despite, incarceration, individuals at these facilities maintain the constitutional right to appropriate healthcare treatment and services.

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 Posted on April 06, 2020 in Criminal Defense

The Coronavirus pandemic has shut down much of society, including many courts across the country. While any court closure has an impact on those with pending cases, the closing of a criminal court – where many of those who are impacted are in custody – raises obvious concerns.

On March 16, the Chief Justice of the Supreme Court of Virginia issued an order declaring a judicial emergency. In effect, the order suspended all deadlines and closed the courts for all non-emergency, non-essential functions. Initially, the order was for 21 days, and was set to expire on April 6. However, on March 27, the Chief Justice issued another order extending the judicial emergency until April 26.

Under the original order, all non-essential, non-emergency proceedings are to be continued. This means that all jury trials and trials held in front of a judge will be continued until at least April 26. However, the Court’s order does allow for specific procedures to continue. For example, the following hearings and proceedings can still be conducted during the judicial emergency:

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 Posted on March 19, 2020 in Criminal Defense

Earlier this year, a state appellate court issued a written opinion in a Virginia drug possession case discussing whether the evidence presented proved that the defendant knew the drugs were in the center console of the vehicle he was driving. Ultimately, the court found that there was insufficient evidence to establish constructive possession, reversing the defendant’s conviction. The case presents a good example of the concept of constructive possession.

According to the court’s opinion, police officers pulled over the defendant for speeding. When the officer approached the car, he smelled marijuana and noticed that the defendant was nervous and sweating. The officers searched the car, finding a small baggie of marijuana in the center console. Also in the center console was a piece of crumpled up notebook paper with a single Oxycodone pill inside. There was no evidence presented regarding who owned the car, how long the defendant had been using the car, or where the marijuana was found in relation to the oxycodone.

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 Posted on March 05, 2020 in Criminal Defense

In Virginia, most traffic citations are not criminal matters. However, when a motorist violates some of the more serious traffic laws, it may result in more than just a traffic ticket. Some traffic violations can end up in a criminal conviction, resulting in fines, costs, probation and even jail time.

One example of this type of offense is a Virginia DUI. Technically a traffic offense, a DUI will result in criminal charges being filed against a driver. A hit and run accident is another example. In February, a state appellate court issued a written opinion in a Virginia hit and run case discussing the defendant’s conviction for failing to stop at the scene of an accident. The case presents a thorough discussion of what the prosecution must establish before a defendant can be found guilty of this offense.

As is the case in any criminal trial, the prosecution must establish each element of the offense beyond a reasonable doubt. Under Virginia Code § 46.2-894, a person who is involved in an accident must stop as close to the scene as possible. In addition, a motorist must provide their "name, address, driver’s license number, and vehicle registration number forthwith to the State Police or local law enforcement agency, to the person struck" as well as anyone who was injured in the accident. Finally, the motorist must render reasonable assistance to anyone injured in the accident, including taking that person to the hospital or calling 911.

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