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Articles Posted in Weapons Offenses

Both the United States Constitution and the Virginia State Constitution contain provisions that prevent a criminal defendant from being charged or punished twice for the same offense. These protections from “double jeopardy” help form the backbone of the procedural due process rights that criminal defendants are entitled to under both the state and federal constitutions. The Virginia Court of Appeals recently decided to reverse a defendant’s convictions on these grounds, finding that he could not be convicted of two charges for the same conduct, and that the prosecution would have to choose one or the other charge upon a retrial.

The defendant in the recently decided case was charged with several crimes after an alleged burglary. Police were tipped off to the defendant after he was observed spending some old currency that appeared to be the same as that which was reported missing from the victim’s home. After serving a search warrant at the defendant’s house, police found allegedly stolen items in his possession, including jewelry, currency, firearms, and ammunition. Among other charges, the defendant was charged with possession of a firearm by a felon as well as possession of ammunition by a felon. At trial, the defendant was ultimately convicted of several crimes, including both the enhanced firearm and ammunition offenses.

The defendant appealed his conviction, arguing that the offenses of possession of a firearm by a felon and possession of ammunition by a felon cannot be charged together under the circumstances of the case without violating constitutional double jeopardy clauses. The defendant convinced the appellate court that because the two charges arose out of the same occurrence, by the same factual pattern, and were not two separate incidents of possession, that he could not be punished for both. The Virginia Court of Appeals reversed both of the defendant’s convictions and instructed the prosecution to choose one or the other charge and retry the defendant.

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.

A detective later recovered a cell phone at the restaurant and without a search warrant, the detective went into the phone settings to find the phone’s identification serial numbers. The detective did not search any other part of the phone. Using the serial number, the security guard was able to find the name and photograph of the defendant. The defendant had an additional cell phone, which the detective used to track the defendant’s location and arrest him.

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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.

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.

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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.

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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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.

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