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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.

In Caniglia v. Strom, a couple was arguing in their home when the husband picked up his unloaded handgun and stated to his wife, “why don’t you just shoot me and put me out of my misery.” The following day, after spending the night at a motel, the woman contacted the police and asked them to escort her home. The husband agreed to a psychiatric evaluation after the police assured him they would not confiscate his handguns. After the man was admitted to a psychiatric facility, the police entered his home and seized his handguns. The officers returned the gun after the man sued; however, they argued that the community caretaking exception permitted their seizure.

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.

Under the Fourth Amendment, the constitution grants individuals the right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court explained that historically seizure inquiries involve the common law rules regarding arrest-which is the seizure of a person. Further, the court opined that physical force to the body of a person with the intent to restrain is an attempted arrest, even if the person does not yield.

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.

The defendant was charged with filming a non-consenting minor under Virginia Code § 18.2-386.1(A). After the prosecution’s presentation of the evidence, the defendant moved to strike the indictment, arguing that the evidence was insufficient. Essentially, the defendant claimed that he could not be found guilty because the girl never told him that he did not have permission to film her. The court rejected the defendant’s claim, stating that no minor “can consent to anything.” The defendant was subsequently convicted.

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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.

In cases where a Virginia appellant contests their conviction, the court should address each assignment of error. Here, the appeals court addressed each issue in their opinion and ultimately affirmed the conviction. In some instances, a court may deny an otherwise meritorious appeal because of a procedural issue. These situations illustrate the importance of retaining a criminal defense attorney who has a comprehensive understanding of Virginia criminal procedure.

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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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.

Police later arrested the defendant, confiscating the knife. However, when the arresting officer seized the knuckle knife, he did not know that it was a knife, thinking it was a pair of brass knuckles. At trial, the defendant moved to strike the indictment, arguing that a knuckle knife was not included among the prohibited items in section 18.2-308(A).

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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.

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.

The defendant moved to suppress his chats’ contents with the detective, arguing that they were electronic communications obtained in violation of the wiretap act. He contended that only two parties could consent to the recording of the conversation, the persona of Lilly and the defendant, and as such, the detective was a third party. Further, he argued that the statements he made to the police were made during a custodial interrogation, and he should have received his Miranda rights.

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.

At issue was Virginia Code section 19.2-294, which covers dual charging. The code addresses limiting prosecutions in cases where double jeopardy is irrelevant. Specifically, if a defendant’s act is a “violation of two or more statutes or two or more ordinances,” conviction under one of the statutes or ordinances “shall be a bar to a prosecution proceeding under the other or others.” Moreover, if the offense is a violation of a statute and federal statute, prosecution under the federal statute will bar prosecution under the state statute. The statute is designed to prevent an accused from multiple prosecutions. However, unlike double jeopardy rules, the statute does not consider the elements of an offense, and instead limits prosecution to an act instead of a crime. It only applies if there has been a “conviction,” not just a proceeding or prosecution.

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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