Recent Blog Posts in September 2011 |
| September 28, 2011 |
| Can the police search my car when I'm stopped? |
| Posted By Shawn Cline |
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I can't tell you how common it is for clients to come to me with all sorts of charges that emerged from a search of their automobiles. There is almost a limitless variety of contraband that people can and do conceal in their cars as they commute from place to place. From narcotics, to concealed weapons, to illegal alcohol; police officers routinely find these items through vehicle searches.
Automobile searches are as complicated a field of criminal law as any you will find, and the law is constantly changing with various state and federal cases addressing specific fact patters and slight variations on the existing law. But certain points are well settled, and this posting will provide a cursory overview. Remember though, that there is no substitute for sitting down with an experienced criminal defense lawyer to discuss your specific case.
Code §19.2-59 provides that "No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer." Obviously, an automobile would qualify as a "thing", so it would appear that your car cannot be searched without a warrant. Unfortunately, courts have carved out an exception to the warrant requirement, which is known broadly enough as the "automobile exception". The cases that form the bedrock of this exception have come in the last 50 years in response to the proliferation of automobiles as the primary means of transit in this country.
So what is the "automobile exception", and how broad is it? Well, first and foremost, officers always have a right to seize contraband items that are in "plain view". So if an officer walks up to your vehicle and sees narcotics through the window, he can seize them (and take other actions, which will be discussed later).
But even if an officer cannot see the contraband with his own eyes, he can search an automobile if there is probable cause that the vehicle contains evidence of criminal activity (see United States v. Ross, 456 U.S. 798). So if the police pull you over and smell marijuana emanating from the vehicle, they can search any part of the vehicle where evidence of the marijuana might be found.
In addition, even where there is no probable cause that the vehicle contains evidence of a crime, police may search any part of the vehicle within immediate control of an individual being placed under arrest. (see Michigan v. Long, 463 U.S. 1042). This is ostensibly for officer safety. By way of example, this would allow a search of the entire driver compartment of a vehicle after removing and arresting the driver. The same would apply for a passenger being arrested. The discovery of contraband items in this limited search would probably constitute probable cause to search the entire vehicle. It is important to note, however, that the search incident to arrest must be based upon a charge which would actually result in arrest. For example, an officer cannot stop someone for speeding, place them under arrest, and thereby gain authority to search the drivers compartment of the vehicle. This is simply because there is no reason to arrest someone for speeding.
One type of search that is always allowed is a consent search; in other words, where the driver voluntarily allows the officers to search the vehicle. The key is that the consent must be voluntary. Consent is not voluntary if the officers gain consent through unlawful coercion. For example, if a vehicle is stopped for speeding, the officers are allowed to ask permission to search the vehicle. If the driver says no, however, the officers cannot detain the vehicle while waiting for a drug dog, with the hopes that the dog will give probable cause to search. This is because the duration of the stop cannot exceed that which would be reasonable to ascertain the nature of the violation (e.g. speeding), and write the appropriate summons. If, however, the drug dog could arrive within the reasonable time for issuance of such a summons, then the dog would be allowed to sniff around the car while the other officer issues the summons. The key is that the vehicle cannot be held longer than reasonable under the circumstances of the underlying stop.
Similarly, the officers cannot tell the driver that if he does not consent to a search, the vehicle will be held until the drug dog arrives, because it would not be legal to hold the vehicle for that period of time. Under these circumstances, the driver's consent to the search would probably be viewed as not voluntary, and therefore not valid.
One of the most glaring elements of the automobile exception to the search warrant are "inventory searches" of vehicles taken into police custody by virtue of being towed. These inventories are ostensibly for the protection of the vehicle owner so that no personal items within the vehicle are lost or stolen at impound. But inventory searches are exceedingly thorough, and require no probable cause that any contraband is within the automobile.
A high percentage of the contraband that ultimately finds its way into criminal proceedings comes from automobile stops. If you or someone you love is the subject of a criminal charge, and the basis of the charge was a stop and search of an automobile, please call our office right away. There is much to be done in addressing an automobile search. While courts have tried hard to limit the application of the search warrant requirement, the Constitution is still on your side. |
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| September 24, 2011 |
| My BAC is over .08, I guess I have to plead guilty... |
| Posted By Shawn Cline |
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Not true!
I can't tell you how often I hear clients who feel absolutely defeated by the fact that they were stopped for DUI and produced a breathalyzer result over .08. "Over the limit, under arrest", right? Well, being over the limit can certainly get you arrested, but there is a long road between arrest and conviction, and an aggressive and experienced DUI attorney knows how to turn that road into a treacherous minefield for the prosecution.
First and foremost, unlike some states, Virginia does not have what is called a "per se" DUI statute. The best way to compare a "per se" DUI statute to Virginia's DUI statute is by example. As it turns out, North Carolina has a "per se" DUI statute. §20-138.1 of the General Statutes of North Carolina provides that a motorist shall be guilty of driving under the influence where "he has, at any relevant time after driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration."
Virginia's statute is different, however, and has been interpreted by the Virginia Supreme Court to mean that the result of a breathalyzer or blood test only creates what is called a "permissive inference" that the blood alcohol at the time of the breathalyzer was the same as the blood alcohol at the time of driving. This seems like a minor point, but cases are won and lost on minor points.
What this really means to the DUI practitioner is that in North Carolina, once the motorist submits a breathalyzer over 0.08, the case is essentially over (unless there was no reason to stop the vehicle in the first place, etc.).
However, in Virginia, that BAC over 0.08 is only indicative of the BAC at the time of the breath sample, not necessarily at the time of operation of the vehicle. This is a critical distinction, because the only BAC that matters in Virginia is the BAC at the time of operation of the vehicle.
This is where things get interesting; and where things get scientific. The science of blood alcohol is far more complex than can be explored in this posting. Suffice it to say that blood alcohol is a constantly changing variable. It changes with time, with alcohol intake, with food intake, with metabolism, and with countless other factors. If you have ever consumed alcohol, you know that the effects are not felt immediately. Think about it like this: if you take two bottles of beer and drink them as quickly as possible, you do not feel the effects right away. But perhaps 30 minutes later you will begin to feel some measure of intoxication. Why is there a delay? Shouldn't you feel the aclohol as soon as it's in your body? The answer is that the effects of intoxication are not felt until the alcohol actually gets into the brain, and to get there, it must first process through the digestive system, through the lining of the stomach and into the blood stream, only then can it flow into the brain to affect the central nervous system. This takes time. How much time? Well, it varies from person to person, and upon other variables such as food intake, speed and volume of alcohol intake, fatigue, metabolism, etc.
The reason why this is so important is that it is entirely possible for an individual to consume some amount of alcohol and then operate a vehicle with a BAC that is slowly rising, but never exceeding 0.08. This individual could be stopped on suspicion of DUI with a BAC of say, 0.07 (but still rising). By the time they get to the police station, that BAC could be drastically higher (and well above 0.08). In North Carolina (because of the "per se" statute), it makes no difference that the BAC at the time of the breathalyzer was higher than it was at the time of operation of the vehicle. But in Virginia, a skilled DUI attorney can demonstrate to the judge or jury through scientific evidence that the BAC could have been much lower at the time of operation of the vehicle than it was at the time of the breathalyzer; thereby rendering the breathalyzer result essentially meaningless. This is where things like performance on the field sobriety tests and testimony of witnesses to the individual's drinking can be absolutely essential, along with an understanding of the science of blood alcohol and it's effect upon the central nervous system.
The bottom line is that DUI litigation is a tremendously complicated field. If you are the kind of person who can't have a DUI on your record, you need to contact our office. Our rates are reasonable, but we know the law and the science of DUIs, and can apply both to winning your case! |
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| September 21, 2011 |
| What can be done on a prostitution or solicitation charge? |
| Posted By Shawn Cline |
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Prostitution and soliciting a prostitute are some of the most common charges in this area. Local law enforcement agencies conduct stings using websites like backpage.com to catch individuals involved in these types of transactions. Perhaps it is because of the strong military presence in this area, bringing tens of thousands of young people far away from their homes, but the sex industry generates tremendous revenue in Hampton Roads; and considerable attention from law enforcement. The stakes are high, as solicitation and prostitution are both Class 1 misdemeanors, carrying up to a year in jail and a $2,500 fine. And unlike many other misdemeanor offenses, prosecutors in Virginia are usually looking for jail time when the charge is prostitution or solicitation. This is particularly true where the individual has previously been convicted of the same offense.
Virginia Code §18.2-346 criminalizes the commission of adultery, fornication, cunnilingus, fellatio, anilingus, object sexual penetration, or anal intercourse for money or some other thing of value. In addition, the Code criminalizes the offer to commit any of these acts in exchange for money or something of value where the individual "thereafter does any substantial act in furtherance thereof". This language is critical, because in certain cases an agreement will be reached regarding the exchange of sexual services for money, but the individual will be arrested prior to doing any substantial act in furtherance of the agreement. In addition, from time to time police officers will arrest an individual for engaging in action that simply is not criminalized by the statute. Even where an individual has engaged in criminalized conduct, there are issues to be explored, such as the lawfulness of the arrest, as well as the possibility of entrapment. These defenses are highly technical, and should only be presented by an experienced criminal defense attorney.
These types of charges carry not only the possibility of jail time and fines, but also the tremendous stigma that comes from such a conviction. Many employers will terminate and not thereafter hire individuals convicted of this offense. This is particularly true for those in the military. The ramifications for those who are married or in relationships are obvious and usually swift. The bottom line is that these charges must be defended, and aggressively. Contact us today, we are ready to help you! |
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| September 16, 2011 |
| How bad are federal sentencing guidelines in child pornography cases? |
| Posted By Shawn Cline |
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This is kind of a loaded question, and the answer is "terrible". I'll explain why, but the take away from this posting is that if you are facing federal child pornography charges, your long-term liberty is at considerable risk.
Let's start by understanding sentencing guidelines. Felony sentencing in Virginia, and Class A misdemeanor and all felony sentencing in the federal courts, are handled through what are called "sentencing guidelines". Prior to 1995 in Virginia and prior to 1984 in the federal system, judges were bound only by statutory maximums and minimums in determining sentences. Since few charges carry mandatory minimums, judges had tremendous discretion in determining sentences. Judges could consider the nature of the offense and the offender's characteristics in deciding a sentence that suited the particular crime. This degree of judicial autonomy was a time honored part of our jurisprudence, dating back to the Magna Carta in England. This system wasn't perfect, and certainly some judges would treat the same offense differently then others, but it was generally accepted as the best option available.
This all changed with the implementation of federal sentencing guidelines in the Sentencing Reform Act of 1984. This act created the U.S. Sentencing Commission and mandated federal guidelines which would take into consideration aggravating and mitigating factors about the offense and the offender, and thereby produce a sentence range. Initially, these guidelines were mandatory, in other words, the judge could not divert upward or downward from the guidelines. However, the Supreme Court held in 2005 in
United States v. Booker that the guidelines were only discretionary, and that while they might provide guidance to the sentencing judge, he was able to depart from them in appropriate cases.
Today virtually ever state has some form of sentencing guidelines, and Virginia is no exception.
The basic premise is to create a more fair criminal justice system by fostering consistency and predictability in sentencing. However, in practical terms, sentencing in federal child pornography possession charges has become consistently outrageous and predictably draconian. I have handled child pornography cases in Virginia and federal courts, and have seen federal guidelines for the same child pornography possession offense calculated at as much as ten times the recommended state guidelines. I have also handled child pornography cases in military courts, where there are no sentencing guidelines at all. Interestingly enough, it has been my experience that military courts typically adjudge the most lenient sentences in these cases, perhaps because the court can consider all the aggravating and mitigating factors without being hamstrung by sentencing guidelines.
There is no question though that federal child pornography possession guidelines are the most severe.
Here's why: Federal sentencing guidelines were designed to be promulgated by the U.S. Sentencing Commission based upon data collected from previous sentences. In other words, the sentencing guidelines did not come directly from Congress, but rather from the Sentencing Commission which was chartered by Congress to produce carefully considered guidelines. However, largely as a result of political pressure, Congress has on numerous occasions directly amended the sentencing guidelines for possession of child pornography to make them considerably worse; all without considering input from the Sentencing Commission. Interestingly, possession of child pornography is the only offense for which Congress has directly amended the guidelines. All other guidelines have been promulgated by the Sentencing Commission, and not directly from Congress.
Predictably, Congress has taken the politically expedient route of making the guidelines for possession of child pornography unbelievably severe. So severe in fact, that in many cases the sentencing guidelines for simple possession of child pornography in the federal system are more severe than the guidelines for having actually engaged in the sexual abuse depicted in the pornography! This result defies belief, but it is a product of Congressional meddling in this complex field, as well as the morbid popularity of shows like "To Catch a Predator".
Here's what Congress has done: It has more than doubled the base offense level for possession of child pornography from 10 in 1991 to 22 in 2011. On top of that, they have added a 2 point increase for use of a computer (virtually all child pornography exchange today occurs online, so this almost always applies). They have added a 5 point increase for distributing images with the "expectation of something of value" (receiving an image from someone else on a peer to peer network qualifies for this increase, so this increase almost always applies). There is a 4 level increase for images depicting bondage or violence, and another 5 level increase for possession of more than 600 images. Because this material is now distributed primarily online, an individual can assemble a collection of more than 600 images in a matter of minutes, and almost invariably this collection will include images depicting bondage or violence, regardless of whether the individual is seeking this type of material. Further, the individual may not have ever viewed or even have been aware of the content of these images, he will still be accountable for these increases in offense level.
The result of this Congressional meddling is that most federal possession of child pornography cases will produce guidelines at or near the statutory maximum of 20 years.
Meanwhile, state guidelines remain considerably more reasonable, although much of that will depend upon how the prosecutor decides to charge the case. This is because each image can constitute a separate charge, so the prosecutor can decide how many charges he wishes to bring based upon the volume of the collection.
If you or someone you love is facing a possession of child pornography charge, contact us right away. Time is of the essence in developing a defense in these types of cases. We handle both state and federal child pornography cases, and are ready to defend you! |
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| September 14, 2011 |
| What is the Virginia Sex Offender Registry? |
| Posted By Shawn Cline |
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One of the most enduring effects of a conviction for a sex crime in Virginia, and really throughout the entire country, is the sex offender registration that follows. Virginia, like most states, maintains an online database of individuals who have been convicted of certain sexual offenses. The registry includes the individual's home and work addresses, their picture, as well as the convictions that triggered registration. Citizens can search this registry with ease, using zip codes as a search term. The registry is maintained by the Virginia State Police, and according to the website, its purpose is to "make information more easily available and accessible, not to warn citizens about any specific individual." That is all well and good, but the practical effect is that individuals on the registry who my have little to no likelihood to reoffend are forced to endure a lifetime of ridicule and harassment. And you can't avoid this scorn simply by leaving the state, as each state requires registration regardless of where the conviction occurred.
Certain offenses trigger registration, and registration is typically a lifetime requirement. However, depending upon the nature of the offense, an individual may petition the Circuit Court for removal from the registry after either 15 or 25 years.
Sex offender registries in Virginia and throughout the country are political gold for politicians. Any measure that seeks to make life more difficult for people convicted of these sorts of offenses is sure to receive widespread approval from voters. What these people fail to understand is that the risk of reoffending in most cases is quite low. Meanwhile, individuals on these registries find it impossible to secure employment and maintain any degree of normalcy.
If you or someone you love is facing a sex charge, you must contact an experienced criminal defense attorney. We handle every type of sex crime, from possession of child pornography to the most serious crimes involving physical contact with minors.
Please call, we are here to help. |
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