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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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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.

Executive Order 63 went into effect May 29, 2020, and requires individuals over the age of ten wear a mask when visiting the following places and businesses:

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:

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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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.

The officer followed the defendant. A few moments later, the defendant approached a red light. When the light turned green, the defendant waited six or seven seconds before proceeding. The officer initiated a traffic stop and, upon approaching the vehicle, noticed that the defendant had glassy eyes, slurred speech and that there were numerous containers of alcohol in the car. The defendant was ultimately arrested and charged with DUI.

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