Vol. 1, No. 1 | July 2006

Legal Summaries: Criminal Procedure

by Sara Poole
Legal Specialist
Virginia State Police

FOURTH AMENDMENT ISSUES

Standing:

Williams v. Commonwealth, No. 2217-04-4, June 20, 2006 Virginia Court of Appeals Memorandum Opinion.  Held that neither the driver nor the defendant passenger were the lessee, nor were they an authorized driver of the rental vehicle; nor was there any evidence as to how either came into possession of the vehicle.  Court held that in the absence of evidence sufficient to establish a possessory interest, neither had a reasonable expectation of privacy in the vehicle where the terms of the rental agreement did not include either as the lessee or an authorized driver; therefore, the defendant did not have standing to challenge search of vehicle.   (Note: Sometimes you don’t even have to get to the search issue when you can take it out with standing).

Logan v. Comonwealth., 46 Va. App. 487 (2005). The Court held that the common areas of a rooming house (15 rooms with 3 floors), where the house was posted no trespassing and the public did not have access to the house, the tenants and their guests had an expectation of privacy, and law enforcement officers needed a search warrant or consent to enter and search.  (Note: Knock on the door and see if someone will let you in if the place is posted, or get the landowner to post written notice to all tenants that the premises are patrolled by police and put in the lease that common areas are patrolled, or just treat it like you would a regular house.  This is a case of first impression).

Reasonable Suspicion:

El-Amin v. Commonwealth., 269 Va. 15 (2005).  Although there is no per se “companion rule” in Virginia, the trial court did not err in refusing to suppress evidence found as a result of a pat-down search of the defendant following the discovery of a hand gun on the person of one of his three companions while they were located in a known high crime area. Under these circumstances, the search was reasonable, given legitimate safety concerns of the investigating officers.  (Note: Remember to articulate how the persons were acting together – look to gang membership, setting, etc. and remember the U.S. Supreme Court case Maryland v. Pringle, dealing with defendants acting in concert).

Search Warrants:

Hudson v. Michigan, 547 U.S. ___  (June 15, 2006) [See also “Case Summaries: Hudson v. Michigan,” in this issue].  Court held that violation of the “knock-and-announce” rule did not require the suppression of all evidence found in the search of a residence.  We have rejected “[i]ndiscriminate application” of the rule, Leon, supra, at 908, and have held it to be applicable only “where its remedial objectives are thought most efficaciously served,” United States v. Calandra, 414 U.S. 338, 348 (1974) — that is, “where its deterrence benefits outweigh its ‘substantial social costs,’” Scott, supra, at 363 (quoting Leon, supra, at 907).  What the knock-and-announce rule has never protected, however, is one's interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.   (Good case to remember!)

Brigham City v. Stuart, 547 U.S. ___  (2006)  Police responded to a call at 3:00 a.m. and saw through a screen door an altercation in the kitchen between 4 adults and juvenile.  The juvenile punched one of adults causing him to spit blood in the sink.  Law enforcement officers entered the house, announced their presence, and made an arrest.  The Court held that police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.  Because the officer’s subjective motivation is irrelevant, it does not matter here whether they entered the kitchen to arrest the respondents and gather evidence or to assist the injured and prevent further violence.

PROBABLE CAUSE TO ARREST:

U.S. v. Brown, 401 F.3d 588 (4th Cir. 2005).  Police received an anonymous tip about a person with a gun and approached him.  They smelled alcohol and arrested him for drunk in public.  The Court held that the police lacked probable cause since the defendant only smelled of alcohol but showed no physical signs of impairment.  The search incident to arrest, which revealed a firearm, must be suppressed and conviction for possession of a firearm by a convicted felon was overturned.  (Note: Remember to look for physical indicators of drunkenness.   Also remember Va. Code §19.2-74).

FIFTH AMENDMENT ISSUES:

Miranda/Traffic Stop: 

Dixon v. Commonwealth, 270 Va. 34 (2005).  The Court held that where a law enforcement officer stopped a vehicle for DUI around 3:00 a.m., handcuffed the driver due to an attempted escaped, placed him in his vehicle and locked the door, that even though he told him, he wasn’t under arrest and being detained for investigative and safety reasons, the restraint is to such a degree associated with a formal arrest that a reasonable person would conclude that he was in police custody for Miranda purposes. 

MISCELLANEOUS:

SUBPOENA DUCES TECUMS:

Everett v. Commonwealth., 2004 Va. App. LEXIS 558 (2004).  The Court held that a subpoena duces tecum for the Virginia Beach Police Department’s narcotic dog was properly quashed as the Department was a party to the action and not subject to the subpoena.  (Note: Remember the Rules of Supreme Court and limited discovery do NOT permit defendants to subpoena law enforcement records.  If the Commonwealth’s Attorney does not file a Motion to Quash, have County/City Attorney file if needed).  (Note also that the Court of Appeals indicated that this opinion is not designated for publication.  This limits its value as a precedent.  This latter comment was added by the editors).