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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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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.

The defendant’s wife called the police, explaining what the defendant told her. Law enforcement then investigating the defendant. To obtain a sample of the defendant’s DNA, police went to his home and obtained items from his trash, including a beer bottle and cigarette butts. The results from the DNA testing indicated that the defendant “could not be eliminated” as a contributor from the sexual assault. After this, the police obtained a warrant to obtain an additional DNA sample from the defendant, which also indicated he could not be eliminated as a contributor.

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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.

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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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.

Earlier this year, a state appellate court issued a written opinion in a Virginia assault case discussing whether there was sufficient evidence to sustain the defendant’s convictions. Ultimately, the court rejected the defendant’s arguments, affirming her convictions.

The Facts of the Case

According to the court’s opinion, a police officer received a call from the defendant’s home. Upon arriving, the officer parked in the driveway. As he got out of the car, the officer could hear screaming. Moments later, the officer noticed several people standing on the porch, with the defendant in the doorway.

A man on the porch addressed the officer, explaining that he had lived at the home and wanted to get inside to get his belongings. The defendant began shouting that the man had “put his hands on her.” The officer walked up the porch and began to talk to the man. The defendant continued to yell and argue with the man. When the officer told her to stop yelling, she tried to shut the door. The officer put his foot in the threshold to prevent the door from closing.

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Earlier this year, a state appellate court issued a written opinion in a Virginia gun possession case, requiring the court to review the lower court’s denial of the defendant’s motion to suppress a gun that was found under the seat of the car he was driving. Ultimately, the court concluded that the facts surrounding the car stop, as well as the information the officers had at the time, failed to justify the officers’ protective sweep of the vehicle.

The Facts of the Case

According to the court’s opinion, police officers pulled over the defendant due to a burnt-out fog light. When the officers approached, they asked if there were any weapons in the car. The defendant told them that the car was his girlfriend’s, but that there were not weapons he knew of. When asked, the defendant declined to give consent to search the vehicle, explaining that it was not his car. However, the defendant offered to call his girlfriend to ask her if she was willing to give consent. While one officer was interacting with the defendant, the other looked up a Department of Corrections alert indicating the defendant may be a member of the Crips gang. However, the officer did not convey this information to his partner at the time.

After the defendant refused to consent to a search, one of the officers told him to get out of the car so that he could perform a protective sweep of the vehicle. The defendant complied. The protective sweep revealed a gun under the driver’s seat.

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In the wake of the COVID-19 crisis, for the most part, Virginia courts have remained closed. While courts will hear certain emergency petitions, criminal trials are yet to resume. Indeed, courts across the country are struggling with how to conduct trials while ensuring that all participants remain safe.

One option that has gained considerable attention is the use of two-way video technology. In theory, there are various ways that courts can use this technology. One of the most common proposals involves having the jury sequestered in another room while viewing the testimony of witnesses over video rather than in person. This alternative involves the defendant, defense counsel, the prosecutor, the judge, and the witness all remaining in the courtroom.

Another alternative that some have suggested is allowing witnesses to testify remotely, through the use of two-way video. This option would likely be used in conjunction with the above example, where the jury is also removed from the courtroom. However, unlike the previous option, the witness would not be physically present in the courtroom.

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.

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!”

The defendant’s license came back, showing he had a warrant. One officer pumped his fist in a “yes!” motion and explained that they could search the area immediately around the defendant as a search incident to the arrest. The other officer corrected the first officer, stating that they could search the whole car because the car would need to be towed, and they would need to conduct an inventory search.

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