PROBABLE CAUSE, SEARCH WARRANTS, EXCEPTIONS TO SEARCH WARRANT REQUIREMENTS - CASE LAW- CONSTITUTIONAL LAW
DePriest, 4 Va.App. at 584, 359 S.E.2d at 543
"As an articulated legal standard, probable cause deals with probabilities concerning the factual and practical considerations in everyday life as perceived by reasonable and prudent persons."
MORTON v. COMMONWEALTH OF VIRGINIA, 26 VA. APP. 946 (1993)- RIGHTS AND LAWS
-4TH AMENDMENT -SEARCH AND SEIZURE -EXCLUSIONARY RULE -GOOD FAITH EXCEPTION -SEARCH WARRANTS -PROBABLE CAUSE -lack of specificity -prohibition against general warrants
BALDWIN V. COMMONWEALTH, 243 VA (1992)
-4TH AMENDMENT RIGHTS ARE NOT VIOLATED BY -OFFICERS APPROACHING AN INDIVIDUAL ON THE STREET, IDENTIFYING THEMSELVES AND ASKING INDIVIDUAL QUESTIONS.
Buck v. Commonwealth, 20 Va.App. 298,(1995)- LAWS AND RIGHTS
-4TH AMENDMENT- -HIGH CRIME AREA -MOTION TO SUPPRESS -MOTION TO SUPPRESS DENIED -TRIAL COURT'S DECISION AFFIRMED -SEARCH AND SEIZURE- LAWFUL -CONSENSUAL ENCOUNTER
AUTOMOBILE EXCEPTION TO THE SEARCH WARRANT REQUIREMENT- YOU DON'T NEED A WARRANT- YOU NEED PROBABLE CAUSE AND THE SCOPE OF THAT SEARCH WOULD BE WHAT A MAGISTRATE WOULD HAVE ALLOWED THEM TO DO-
-AUTOMOBILES ARE GIVEN LESS PRIVACY THAN OUR HOMES, HISTORICALLY -AUTOMOBILES CAN DRIVE OFF
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- courts
-Defendant was convicted by the trial court, sitting without a jury, for possession of controlled drugs, sentenced to twelve months in jail, and ordered to pay a $1,000 fine.
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- details
-JULIAN VICTOR ITALIANO v. COMMONWEALTH OF VIRGINIA. -Supreme Court of Virginia. November 26, 1973. Present, All the Justices. 1. Police officers arrived with warrant to search apartment for controlled drugs, properly forced entry, and found controlled drugs in open view on table. No one claimed drugs. "Possession" may be joint. While mere possession is not sufficient to convict, quantum of information in this situation constituted probable cause for arrest and search of person. 2. When probable cause exists to arrest a person, a constitutionally permissible search of his person incident to arrest may be conducted by officer either before or after the arrest if the search is contemporaneous with the arrest -On the night of July 13, 1972, several police officers from the City of Hampton and State troopers went to search a certain apartment in Hampton, knocked on the door, identified themselves, and stated that they had a search warrant for possession of controlled drugs. Suddenly, people in the apartment began to scurry about. In order to gain admission the police had to kick open the door. -When the officers entered the apartment, controlled drugs were seen in open view on a table in the living room. One of the Hampton officers and a State trooper passed through the living room into the bathroom where they found the defendant. The trooper brought the defendant into the living room and searched him. A cigarette package containing nine aluminum packets of a brownish powder later identified as MDA, a controlled drug, was found in defendant's pocket. The defendant was then placed under arrest. -Defendant was convicted by the trial court, sitting without a jury, for possession of controlled drugs, sentenced to twelve months in jail, and ordered to pay a $1,000 fine.
Buck v. Commonwealth, 20 Va.App. 298, 304, 456 S.E.2d 534, 536-37 (1995)
"If an officer has reason to believe that a person is committing a felony in his presence by possessing contraband or a controlled substance, the officer has probable cause to arrest the individual without a warrant."
AFFIDAVIT FOR SEARCH WARRANT - ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)
(1) The offense in relation to which search is to be made is substantially as follows: Possession of a Controlled Drug. (2) The material facts constituting probable cause for issuance of the warrant are: On the 13th day of July, 1972, I received information from a reliable Informant that gave the Affiant information in the past that led to the - 7 - Arrest'and Conviction of Tom Payne in the City of Hampton, Virginia for the Possession of Marijuana and Distribution of Marijuana in December, 1971. This Informant stated that on the 11th and 12th day of July, 1972 in the evening hours and did see Marijuana being Smoked. Informant further stated that he did see the individuals at this dwelling apartment putting a white powder from a plastic bag into cut pieces of Aluminum foil the individuals at this apartment stated that the white powder was Speed. The Informant is known by the Affiant to have smoked marijuana in the past and is familiar with how it is prepared both for Smoking and Sale. (3) The articles to be searched for under the warrant are: Possession of Controlled Drugs to wit: as described in Section 54-524.80 Thru 54-524.84 of the 1950 State Code of Virgini.a, as amended. (4) The house, place, person, vehicle or baggage to be searched is described as follows: A dwelling Apartment located at 204 Armstrong Drive Apartment #4, Hampton, Virginia.
MORTON v. COMMONWEALTH OF VIRGINIA, 26 VA. APP. 946 (1993)- THE SEARCH WARRANT WAS ISSUED BASED ON:
(1) a reliable informant had seen crack cocaine inside the apartment within the past forty-eight hours; (2) the manager of the complex had received complaints of distribution of crack cocaine from this same apartment; (3) the apartment was a private residence; (4) surveillance within the past sixty days had revealed known and convicted drug users inside [434 S.E.2d 893] the apartment; and
inadmissible
(especially of evidence in court) not accepted as valid.
SPIVEY V. COMMONWEALTH, 23 VA. APP. 715 (1997)- DETAILS
- Deborah Spivey (defendant) was convicted in a bench trial for possessing both cocaine and marijuana with the intent to distribute. -On appeal, she contends that the trial court erroneously declined to suppress evidence resulting from an unlawful "no-knock" entry incidental to the execution of a search warrant and improperly received into evidence items omitted from the related inventory. Defendant also challenges the sufficiency of the evidence to support the convictions. Finding no error, we affirm the decision of the trial court. On the evening of December 14, 1994, Portsmouth police executed a search warrant for defendant's residence. The affidavit of Detective Tammy Early given in support of the warrant, together with Early's independent investigation, established that a confidential and reliable informant had observed "Debbie" distribute cocaine from the premises within the immediately preceding seventy-two hours. The informant further advised that "Debbie" distributed cocaine daily to "various persons" and "may possibly be in possession of a .38 handgun," was "known to have a .38." -Defendant's son, Duane, reportedly was her cocaine supplier and resided within "one city block." - Duane frequently "stay[ed]" with defendant, often walking to her residence, and had recently been arrested for discharging a firearm into an unoccupied vehicle. When the warrant was executed, police were unable to determine if Duane was present on the property. Confronted with the "threat of two weapons," Early concluded that execution of the warrant by "knocking and announcing" would imperil the police officers and, therefore, authorized a "no-knock" entry, utilizing a "ramming" device. -Upon entering the residence, police observed defendant running from the living room into the kitchen. She was detained, and the ensuing search revealed cocaine, marijuana, and related paraphernalia throughout the home -A recent Virginia Power bill and a "notice" from Western Union, *546 both addressed to defendant at the residence, were found on a desk in the living room, and cocaine was secreted in the "envelope slot" of the desk. In the kitchen, eleven bags of cocaine were discovered in a drawer, and four bags of marijuana were hidden in a flour canister. A "big piece" of crack cocaine rested in plain view atop a dresser in the "front bedroom," together with two bags containing a total of seventy-one empty smaller plastic bags. Five bags of marijuana were also found in the bedroom, two inside a women's jewelry box, and three in a dresser drawer. Women's clothing, a pocketbook, jewelry, and underwear were also located in the room. A single bag of marijuana was discovered in a bathroom medicine cabinet. Cash totalling $232 was gathered from defendant's "purse" and elsewhere in the residence. -Officer Rivera prepared an inventory of the property seized during the raid, but neither the Virginia Power nor Western Union documents were listed. Rivera attributed the omissions to "inadvert[ance]," "an oversight on [his] part." -Rivera qualified as an expert in "the methods and devices used to distribute narcotics" in the City of Portsmouth and testified that the quantity of the cocaine discovered in the residence, no less than 12.9 grams having a total value of approximately $1,290, and the related packaging and paraphernalia were inconsistent with possession for personal use. He further testified that the quantity and packaging of the marijuana were also inconsistent with personal use. -Defendant moved to suppress all evidence obtained during the search, arguing that it was the fruit of an improper no-knock entry, and objected to the Virginia Power and Western Union exhibits because each had been excluded from the inventory. However, after consideration of memoranda of law and attendant argument of counsel, the trial court overruled both motions - Our consideration of the record includes evidence adduced at both trial and suppression hearings, if any. See DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 542-43 (1987 -However, "[e]xceptions to the rule... permit officers to make an unannounced entry where they have probable cause to believe that their peril would be increased if they announced their presence or that an unannounced entry is necessary to prevent persons within from escaping or destroying evidence." Heaton, 215 Va. at 138, 207 S.E.2d at 830. -"As an articulated legal standard, probable cause deals with probabilities concerning the factual and practical considerations in everyday life as perceived by reasonable and prudent persons."DePriest, 4 Va.App. at 584, 359 S.E.2d at 543 -Defendant's challenge to the sufficiency of the evidence to prove intent to distribute the drugs is also without merit. "Because direct proof of intent is often impossible, it must be shown by circumstantial evidence." Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). "In proving intent, various types of circumstantial evidence may be appropriate evidence concerning the quantity of drugs and cash possessed, the method of packaging,... whether appellant himself used drugs," Poindexter v. Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 527, 530 (1993), and the absence of evidence suggestive of personal use. See Colbert v. Commonwealth, 219 Va. 1, 4, 244 S.E.2d 748, 749 (1978). Officer Rivera testified that the method of packaging and the quantities of both the cocaine and marijuana were inconsistent with personal use. He also testified that the presence of seventy-one empty small baggies suggested an intent to package and distribute the drugs. Finally, the officers *549 found no paraphernalia or other items related to personal use of the drugs. Such evidence was sufficient to support the finding that defendant possessed the offending drugs with the requisite intent to distribute. Accordingly, we affirm the convictions. Affirmed.
Buck v. Commonwealth, 20 Va.App. 298,(1995)- DETAILS
- appellant wad convicted in a jury trial of possessing cocaine -whether cocaine should be suppressed because officers- seized it in violation of the 4th amendment -upon review- affirm the trial court's ruling that the search and seizure were lawful and its admission of the legally seized cocaine into evidence 11/10/92- 6pm- officers DOLAN AND BAINE- ARLINGTON COUNTY POLICE DEPARTMENT- WERE PATROLLING A HIGH CRIME AREA WHERE DRUG SALES FREQUENTLY OCCUR -OFFICER'S WERE IN "PLAIN CLOTHES AND PATROLLING IN A UNMARKED CAR -OBSERVED APPEALANT WITH A GROUP OF GUYS THAT DISPERSED, WITH A 2ND GROUP OF GUYS THAT DISPERSED UPON THE POLICE CAR PASSING, AND THE APPELLANT IN A VEHICLE THAT BEGAN TO MOVE WHEN THE POLICE CAR PASSED- SAW NO TRANSACTIONS OF MONEY OR DRUGS -OFFICERS THEN OBSERVED APPELLANT GETTING OUT OF THE CAR AND WALKING ON THE SIDEWALK- POLICE ADDRESSED HIM AND ANNOUNCED HE WAS A POLICE OFFICER WITH BADGE DISPLAYED ON HIS NECK -THE APPELLANT PLACED A CLOSED FIST TO HIS MOUTH AND BEGAN TO RUN, APPEARED TO PLACED SOMETHING IN HIS MOUTH, DID NOT APPEAR TO HAVE ANYTHING IN HIS HANDS -OFFICER TACKLED HIM WITHIN 10 YARDS -SCUFFLE ENSUED -APPELLANT WAS MAKING A CHEWING MOTION -APPELLANT WAS SUBDUED AND FORCIBLY RETURNED TO THE POLICE CAR -OFFICER HELD DOWN APPELLANT AND TOLD HIM IF NECESSARY WOULD EXTRACT WHAT HE WAS CHEWING- -APPELLANT SPIT OUT PLASTIC PACKET THAT WAS FOUND TO CONTAIN CRACK COCAINE -4TH AMENDMENT RIGHTS WERE NOT VIOLATED BY OFFICERS APPROACHING THE INDIVIDUAL ON THE STREET, IDENTIFYING THEMSELVES AND ASKING INDIVIDUAL QUESTIONS -OFFICERS DID NOT EFFECT NO STOP OR SEIZURE, 4TH AMENDMENT HAD NOT BEEN IMPLICATED- CONSENSUAL ENCOUNTER -BASED ON OFFICER'S EXPERIENCE- SMARTER DRUG DEALERS MAY DRIVE AROUND IN A VEHICLE WITH YOU -APPELLANT APPEARED TO HAVE PUT SOMETHING IN HIS MOUTH, FLED FROM OFFICERS, AFTER- ENTER A CAR, CIRCLE THE BLOCK, AND THEN EXIT IN AN AREA KNOWN AS AN OPEN DRUG MARKET.-REASON TO BELIEVE APPELLANT BOUGHT OR SOLD DRUGS -CHEWING AND SWALLOWING- COCAINE IS A COMMON WAY TO DISPOSE OF IT IF AN OFFICER HAS REASON TO BELIEVE THAT A PERSON IS COMMITTING A FELONY IN HIS PRESENCE BY POSSESSING CONTRABAND OR A CONTROLLED SUBSTANCE, THE OFFICER HAS PROBABLE CAUSE TO ARREST THE INDIVIDUAL WITHOUT A WARRANT -PROBABLE CAUSE TO ARREST= OFFICER MAY SEARCH THE PERSON -DESTROY DRUGS IN HIS MOUTH= PROBABLE CAUSE TO ARREST BASED ON THE OBJECTIVE, REASONABLE BELIEF HE HAD BEEN OR WAR COMMITTING A CRIME. , LIKEWISE UNER THE CIRCUMSTANCES INDICATING THAT THE APPELLANT WAS DESTROYING EVIDENCE AND CREATING A DANGER TO HIS OWN HEALTH AND SAFTEY, THE OFFICERS USE OF PHYSICAL FORCE TO CAUSE HIM TO EXPELL THE DRUGS WAS REASONABLE -AFFIRM DECISION OF THE TRIAL COURT -THE OFFICERS ONLY HAD REASON TO BELIEVE HE POSSESSED COCAINE, AFTER THEY HAD ALREADY HANDCUFFED HIM AND FORCED HIM TO OPEN HIS MOUTH
MORTON v. COMMONWEALTH OF VIRGINIA, 26 VA. APP. 946 (1993)- DETAILS
-Timothy W. Morton appeals his conviction of possession of cocaine -Because we hold that probable cause existed to issue a warrant authorizing the search of Apartment 320 at 100 Princess Anne Street in the Hazel Hill Complex and all the persons present therein, we affirm. -The persons to be searched were Melonie Jones "and all other persons inside of said apt. [sic] at the time of execution of the warrant." The material facts constituting probable cause, as stated in the search warrant affidavit, were as follows: 1. [Pennock] received information from a confidential reliable informant that he/she has witnessed crack cocaine inside 100 Princess Anne Street, apt. 320 within the past 48 hours. This informant has given information in the past that through investigation has proven reliable. In the past this same informant has given information that has led to the arrest of suspects. 2. In the past two weeks the manager of the complex has had complaints about this same apt. in regards to the distribution of crack cocaine and prostitution. The manager has given information in the past which led to arrests of suspects involved in the drug trade. 3. Many surveillances have been conducted by the Fredericksburg Narcotics Unit in the past sixty days ... [and have] revealed several known and convicted drug users, and on two occasions persons being sought by police have sought refuge inside of said apartment. -At 6:45 p.m., the magistrate determined that the facts stated in the search warrant affidavit established probable cause and issued a search warrant authorizing the search for cocaine, and any other illegal drugs, money, records and paraphernalia related to the possession and distribution of cocaine, at "100 Princess Anne Street, in the Hazel Hill Complex, Apartment 320," including all persons inside at the time of the execution. -When Jones admitted the officers into the apartment, the officers observed Timothy Morton, appellant, at the top of the steps in close proximity to an adult male. Officer Taylor escorted the two men downstairs and detained them along with Jones and two other adults present in the house. A search of appellant's rear pants pocket revealed a Tylenol bottle containing cocaine residue, matches, a lighter and a piece of wire. -Prior to trial, conceding that the search warrant affidavit established probable cause to search the premises, the appellant moved to suppress the items seized from his pants pocket. He argued that the "any persons present" language in the search warrant was unconstitutional for lack of specificity, the facts stated in the search warrant affidavit were inadequate to establish probable cause for a search of all persons present, and that the affidavit was so deficient when the search was executed that it could not be saved by the "good faith" exception to the exclusionary rule. -The trial court ruled that the information in the search warrant affidavit established probable cause to search the private residence, and that the totality of the facts, including the allegation that the apartment was a private residence and that drug trading was allegedly taking place in the apartment, justified the search of all persons present when the search warrant was executed.
MORTON v. COMMONWEALTH OF VIRGINIA, 26 VA. APP. 946 (1993)- CONCLUSION
-Timothy W. Morton appeals his conviction of possession of cocaine -agistrate determined that the facts stated in the search warrant affidavit established probable cause and issued a search warrant authorizing the search for cocaine, and any other illegal drugs, money, records and paraphernalia related to the possession and distribution of cocaine, at "100 Princess Anne Street, in the Hazel Hill Complex, Apartment 320," including all persons inside at the time of the execution. -the appellant moved to suppress the items seized from his pants pocket. He argued that the "any persons present" language in the search warrant was unconstitutional for lack of specificity, the facts stated in the search warrant affidavit were inadequate to establish probable cause for a search of all persons present, and that the affidavit was so deficient when the search was executed that it could not be saved by the "good faith" exception to the exclusionary rule. -In this case, the affidavit contained the following facts: (1) a reliable informant had seen crack cocaine inside the apartment within the past forty-eight hours; (2) the manager of the complex had received complaints of distribution of crack cocaine from this same apartment; (3) the apartment was a private residence; (4) surveillance within the past sixty days had revealed known and convicted drug users inside [434 S.E.2d 893] the apartment; and (5) the contraband could be easily hidden on the body. -Based on the totality of the circumstances, we hold that probable cause existed to search all of the persons found inside the apartment when the warrant was executed. The facts in this case established -a substantial "nexus" between the observation of cocaine in the apartment, -the observation of the distribution of cocaine, the private nature of the apartment, -and the easily concealable contraband sufficient to support an "all persons present" warrant. -Having held that warrant was issued upon probable cause, we need not decide whether the good faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), would apply in this case. Accordingly the judgment of the trial court is affirmed. Affirmed. The record does not reveal whether the officers searched the other occupants, including the children, or whether drugs were found in the apartment. Laboratory tests revealed that the bottle taken from Morton's pocket contained cocaine residue. He was convicted of cocaine possession based on the evidence obtained by the police during the search. For the reasons that follow, I would hold [434 S.E.2d 894] that the trial judge erred in refusing to suppress the evidence seized from Morton. The Constitution of Virginia explicitly prohibits general warrants: -BENTON, Judge, dissenting.---- That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted. Thus, the facts presented in the affidavit were insufficient to authorize a warrant to search all persons present. An allegation that drugs were seen in a residence does not suffice to establish a nexus between the alleged criminal activity and all persons present at the residence. See Peavy, 336 So.2d at 202. The failure to allege that cocaine was being sold or distributed in the apartment causes the use of an "all persons present" search clause to run afoul of the prohibition against general warrants.
MORTON v. COMMONWEALTH OF VIRGINIA, 26 VA. APP. 946 (1993)- COURTS
1- TRIAL COURT- RULED information in the search warrant affidavit established probable cause to search ALL PERSONS PRESENT- CONVICTED 2. Appellant was convicted after a bench trial of possession of cocaine in violation of Code § 18.2-250, and received a sentence of five years in the penitentiary with all but nine months suspended. 3. Court of Appeals of Virginia.- AFFIRMED- Having held that warrant was issued upon probable cause, we need not decide whether the good faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), would apply in this case.
CURTILAGE - TO THE HOUSE
1. HOW CLOSE IS THE QUESTIONED AREA TO THE HOUSE ITSELF? 2. WHAT IS THE AREA USED FOR? 3. HAS THE OWNER PLANTED ANYTHING? PUT UP A FENCE?
SPIVEY V. COMMONWEALTH, 23 VA. APP. 715 (1997)- LAWS AND RIGHTS- SEARCH WARRANT
1. MOTION TO suppress evidence 2. SEARCH WARRANT 3. "no-knock" entry 4. MOTION TO SUPPRESS DENIED 5. POSSESSION OF A FIREARM 6. unannounced entry
ABANDON PROPERTY AND ABANDON 4TH AMENDMENT RIGHT-
1. PHYSICALLY DISPOSE OF IT 2. WHERE YOU DENY OWNERSHIP
SPIVEY V. COMMONWEALTH, 23 VA. APP. 715 (1997)- COURTS
1. TRIAL COURT (BENCH TRIAL) - convicted in a bench trial for possessing both cocaine and marijuana with the intent to distribute- MOTION TO SUPPRESS- the trial court overruled THE motion. 2. Court of Appeals of Virginia- we affirm the decision of the trial court
SEARCH WARRANT EXCEPTIONS
1. Terry "stop and frisk". 2. A customs officer of the United States is not required to have a warrant, reasonable suspicion, or consent to search persons, vehicles, baggage, or cargo that have border nexus, regardless of citizenship or origin. 3. CONSENT-Certain cases don't require a search warrant, such as where a person in control of the object or property gives consent. 4. hot pursuit of a felon (to prevent a felon's escape or ability to harm others 5. imminent destruction of evidence before a warrant can be properly obtained 6. emergency searches (such as where someone is heard screaming for help inside a dwelling) 7. search incident to arrest (to mitigate the risk of harm to the arresting officers specifically). 8. As first established by Carroll v. United States, police are allowed to search a vehicle without a search warrant when they have probable cause to believe that evidence or contraband is located in a vehicle. When police arrest an individual shortly after the individual has exited a vehicle, the police may conduct a full search of the suspect's person, any area within that person's immediate reach, and the passenger compartment of the recently occupied vehicle for weapons or any other contraband. 9. If the subject is arrested in a home, police may search the room where they arrested the subject, and conduct a "protective sweep" of the premises if they reasonably suspect that other individuals may be hiding. The laws also allow searches in emergencies where the public is in danger. 10. With rented property, a landlord may refuse to allow law enforcement to search a tenant's apartment without a search warrant, and police must obtain a warrant under the same guidelines as if it were a tenant's own home. In some jurisdictions, police may search a hotel room with permission of hotel management but without permission of the guest and without a warrant. 11. Delayed notice- A sneak and peek search warrant (officially called a delayed notice warrant and also a covert entry search warrant or a surreptitious entry search warrant) is a search warrant authorizing the law enforcement officers executing it to effect physical entry into private premises without the owner's or the occupant's permission or knowledge and to clandestinely search the premises. 12. Gag orders- n California, the California Electronic Communications Privacy Act mandates that in certain cases concerning electronic search warrants that the court issue gag orders "[...] prohibiting any party providing information from notifying any other party that information has been sought
****EXAM QUESTION- WHAT ARE THE 2 MOST IMPORTANT FACTORS WHEN REQUESTING CONSENT?
1. WORDS USED BY THE OFFICER TO REQUEST CONSENT 2. WORDS USED BY THE DEFENDANT TO ACCEPT CONSENT
CONSENSUAL ENCOUNTERS DO NOT INVOLVE THE:
4TH AMENDMENT
PROTECTIVE SWEEP
4TH AMENDMENT ALLOWS POLICE TO CONDUCT A PROTECTIVE SWEEP TO THE AREA, THAT THEY BELEIVE THE AREA MAY GO INTO AN AREA TO ENSURE IT IS SAFE -OR POLICE HAVE A LEGITAMATE CONCERN THAT EVIDENCE WILL BE DESTROYED
Search warrant
A search warrant is a court order that a magistrate, judge or Supreme Court official issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. Under the Fourth Amendment to the United States Constitution, most police searches require a search warrant based on probable cause, although there are exceptions. Any police entry of an individual's home always requires a warrant (for either search or arrest), absent exigent circumstances, or the free and voluntary consent of a person with reasonably apparent use of or control over the property. Under the Fourth Amendment, searches must be reasonable and specific. This means that a search warrant must specify the object to search for and the place to search for it. Other items, rooms, outbuildings, persons, vehicles, etc. may require additional search warrants.
Writ of assistance
A writ of assistance is a written order (a writ) issued by a court instructing a law enforcement official, such as a sheriff or a tax collector, to perform a certain task. Historically, several types of writs have been called "writs of assistance".[1] Most often, a writ of assistance is "used to enforce an order for the possession of lands".[2] When used to evict someone from real property, such a writ is also called a writ of restitution or a writ of possession.[3] In the area of customs, writs of assistance were first authorized by an act of the English Parliament in 1660 (12 Charles 2 c. 29),[4] and were issued by the Court of Exchequer to help customs officials search for smuggled goods. These writs were called "writs of assistance" because they called upon sheriffs, other officials, and loyal subjects to "assist" the customs official in carrying out his duties.
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- LAW AND CHARGES
Arrest, Controlled Substances, Joint or Exclusive Possession of Controlled Substances, Personal Knowledge or Observation, Persons Detained for Investigation, Persons and Personal Effect, Probable Cause, Search Not Incident to Arrest, Search and Seizure Following Arrest
Controlled drugs
substances that are controlled under the Controlled Substances Act (CSA). This act categorizes all substances which are regulated under federal law into "schedules," depending on how potentially dangerous they are. The schedule the drug is placed under depends on its medical use, its potential for abuse, and its safety or how easily people become dependent on it.
NO TRESPASSING SIGNS- IS A PROPERTY RIGHT
BUT THE ABANDONED PROPERTY IS NOT PROTECTED BY THE 4TH AMENDMENT
WHAT YOU CAN DO IN EXIGENT (EMERGENCY) SEARCH IS GREATER AND MORE INVASIVE THAN PROTECTIVE SWEEP
BUT THEY NEED GREATER JUSTIFICATION
border nexus
Border controls are measures taken by a country to monitor or regulate its borders.
EXIGENT (EMERGENCY) SEARCH
CAN GO AHEAD AND SEARCH THE ENTIRE HOUSE
Buck v. Commonwealth, 20 Va.App. 298,(1995)-
COURT OF APPEALS AFFIRMED TRIAL COURT'S RULING THAT THE SEARCH AND SEIZURE WERE LAWFUL AND ITS ADMISSION OF THE LEGALLY SEIZED COCAINE INTO EVIDENCE -CONVICTED IN A JURY TRIAL OF POSSESSING COCAINE -OFFICERS OBSERVED BEHAVIOR CONSISTENT WITH DRUG DEALING/BUYING FROM THEIR EXPERIENCE, TRIED TO START A CONSENSUAL ENCOUNTER, ANNOUNCED THEY WERE POLICE OFFICERS, DEFENDANT RAN, LOOKED LIKE SOMETHING WAS IN HIS MOUTH HE WAS CHEWING ON, HELD HIS HEAD AND FORCED HIM TO SPIT IT OUT. --OFFICERS DID NOT EFFECT NO STOP OR SEIZURE, 4TH AMENDMENT HAD NOT BEEN IMPLICATED- CONSENSUAL ENCOUNTER --BASED ON OFFICER'S EXPERIENCE- SMARTER DRUG DEALERS MAY DRIVE AROUND IN A VEHICLE WITH YOU -APPELLANT APPEARED TO HAVE PUT SOMETHING IN HIS MOUTH, FLED FROM OFFICERS, AFTER- ENTER A CAR, CIRCLE THE BLOCK, AND THEN EXIT IN AN AREA KNOWN AS AN OPEN DRUG MARKET.-REASON TO BELIEVE APPELLANT BOUGHT OR SOLD DRUGS -IF AN OFFICER HAS REASON TO BELIEVE THAT A PERSON IS COMMITTING A FELONY IN HIS PRESENCE BY POSSESSING CONTRABAND OR A CONTROLLED SUBSTANCE, THE OFFICER HAS PROBABLE CAUSE TO ARREST THE INDIVIDUAL WITHOUT A WARRANT -PROBABLE CAUSE TO ARREST= OFFICER MAY SEARCH THE PERSON -DESTROY DRUGS IN HIS MOUTH= PROBABLE CAUSE TO ARREST BASED ON THE OBJECTIVE, REASONABLE BELIEF HE HAD BEEN OR WAR COMMITTING A CRIME. , LIKEWISE UNER THE CIRCUMSTANCES INDICATING THAT THE APPELLANT WAS DESTROYING EVIDENCE AND CREATING A DANGER TO HIS OWN HEALTH AND SAFTEY, THE OFFICERS USE OF PHYSICAL FORCE TO CAUSE HIM TO EXPELL THE DRUGS WAS REASONABLE
NOTICE OF APPEAL AND ASSIGNMENT OF ERROR- ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)-
Circuit Court for the City of Hampton, Virginia The Court erred in refusing to allow the defendant to remain on bond pending the appeal of his conviction to the Supreme Court of Virginia.
SPIVEY V. COMMONWEALTH, 23 VA. APP. 715 (1997)- ADMISSIBILITY OF EVIDENCE OMITTED FROM INVENTORY
Code § 19.2-57 provides, in pertinent part, that: The officer who seizes any property [pursuant to a search warrant] shall prepare an inventory thereof, under oath. An inventory of any seized property shall be produced before the court designated in the warrant. The officer executing the warrant shall endorse the date of execution thereon and shall file the warrant, with the inventory attached ... and the accompanying affidavit, ... within three days after the execution of such search warrant in the circuit court clerk's office, wherein the search was made.... Although the Virginia Power and Western Union exhibits were omitted from the inventory prepared and filed by Officer Rivera, noncompliance with Code § 19.2-57 does not require suppression of the evidence: "While violations of state procedural statutes are viewed with disfavor, ... neither the Virginia Supreme Court nor the legislature has adopted an exclusionary rule for such violations[] ... where no deprivation of the defendant's constitutional rights occurred." "`[H]istorically, searches or seizures made contrary to provisions contained in Virginia statutes provide no right of suppression unless the statute supplies that right.'" ... Code § 19.2-57 does not expressly command the suppression or exclusion of evidence for a violation of the statute. Moreover, [defendant] does not allege that his constitutional rights were violated. West v. Commonwealth, 16 Va.App. 679, 692, 432 S.E.2d 730, 738-39 (1993) (citations omitted).
SPIVEY V. COMMONWEALTH, 23 VA. APP. 715 (1997)- POSSESSION OF A HANDGUN
Contrary to defendant's contention that this ruling resulted solely from a recitation in the affidavit that defendant "may possibly be in possession of a .38 handgun," the trial judge expressly confirmed his consideration of "all the facts and testimony ... rendered in the case."
NOTICE OF APPEAL AND ASSIGNMENT OF ERROR- ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- SEARCH WARRANT
Counsel for Julian Victor Italiano, the defendant in the above styled cause in the Circuit Court for the City .of Hampton, Virginia, hereby gives notice of appeal from the Order entered in this cause on November 30, 1972, and sets forth the following assignment of error: 1. The Affidavit and Search Warrant ~ere defective insofar as they failed to allege a crime pursuant to Sections 54-524.80 - 524.84 of the 1950 Code of Virginia, as amended, having been s~ecifically deleted from the Code (1972 Supp.). 2. The Search Warrant was defective insofar as it was not specific as to the items to be searched for and seized. 3. The search of the person of the defendant was unlawful. (filed 12/18/72)
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- laws and rights
Criminal Law | Criminal Procedure | Evidence | Jurisprudence Keywords Arrest, Controlled Substances, Joint or Exclusive Possession of Controlled Substances, Personal Knowledge or Observation, Persons Detained for Investigation, Persons and Personal Effect, Probable Cause, Search Not Incident to Arrest, Search and Seizure Following Arrest
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)-Defendant contends that the evidence obtained by the search of his person was inadmissible because
Defendant contends that the evidence obtained by the search of his person was inadmissible because (1) "The warrant authorizing the search of the premises did not authorize the search of defendant's person," (2) "The search of the defendant's person was not authorized as being incident to a lawful arrest", and (3) "The search of the defendant's person was not valid as a stop and frisk or pat-down search." We hold that the search was valid as incident to a lawful arrest; therefore, we do not consider defendant's other arguments. Defendant argues that the search of his person was not justified as incident to arrest and was, therefore, unlawful because (1) there was no probable cause for arrest until drugs were found on his person, and (2) the search preceded the arrest.
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- what was JULIAN VICTOR ITALIANO charged, indicted and convicted of?
Defendant was convicted by the trial court, sitting without a jury, for possession of controlled drugs, sentenced to twelve months in jail, and ordered to pay a $1,000 fine.
Huvar Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972)
Defendant, relying on Huvar Commonwealth, 212 Va. 667, 187 S.E.2d 177 (1972), contends that the mere presence of defendant in an apartment where drugs are found is insufficient to constitute constructive possession. His reliance is misplaced. In Huvar we said that "the mere presence of defendant at the party is not sufficient to convict him of actual or constructive possession of the drugs that were found there." Huvar Commonwealth, supra 212 Va. at 668, 187 S.E.2d at 178. (emphasis supplied). We do not detract from Huvar by recognizing that less evidence is required to constitute probable cause to arrest than is required to convict.
U.S SUPREME COURT HAS DELINEATED 2 TYPES OF SEIZURES WHICH IMPLICATE THE 4TH AMENDMENT-
INVESTIGATORY STOPS AND ARRESTS (TERRY V. OHIO)(1968)
NEXIS
Generally, a nexus refers to a connection. In case law, the term may appear when discussing the legality of a governmental restriction, and whether the means of restriction is justifiable in light of the right being restricted. A nexus is often required in all types of cases to establish jurisdiction, apply conflict of laws issues, establish due process in criminal cases, prove causation, etc.
IF A VEHICLE IS A PERSON'S RESIEDENCE, THEY WILL TREAT IT AS A-
HOME
Hearsay in United States law
Hearsay is the legal term for certain statements—offered as evidence during a trial or hearing for the purpose of attempting to prove the truth of the matter asserted in the statements—that were not made while testifying at the trial or hearing itself. In general, the witness will attempt to make a statement such as, "Sally told me Tom was in town" (for the purpose of proving that Tom was indeed "in town"), as opposed to "I saw Tom in town." Hearsay is not allowed as evidence in the United States, unless one of nearly thirty[1] exceptions applies to the particular statement being made.
SPIVEY V. COMMONWEALTH, 23 VA. APP. 715 (1997)- WHY WAS A NO KNOCK WARRANT ISSUED?
Here, a confidential and reliable informant had observed a recent drug sale at defendant's residence, an activity common to the premises, where defendant reputedly possessed a handgun. Defendant's son and drug supplier, Duane, resided nearby, was often at defendant's home and had been arrested ten days previously for shooting into an unoccupied vehicle. When the warrant was executed, Duane's whereabouts were unknown to the police. The officers were, therefore, cognizant that two firearms were possibly present in the residence, each in the possession of a drug dealer, one of whom had recently been charged with a weapons violation. Accordingly, Early's conclusion that a knock and announce entry would endanger police was reasonable and prudent and supported by the necessary probable cause to justify the disputed no-knock entry.
Heaton, 215 Va. at 138, 207 S.E.2d at 830.
However, "[e]xceptions to the rule... permit officers to make an unannounced entry where they have probable cause to believe that their peril would be increased if they announced their presence or that an unannounced entry is necessary to prevent persons within from escaping or destroying evidence."
TO SEARCH CONTAINERS IN A VEHICLE
IF OFFICER HAS PROBALE CAUSE TO SEARCH THE VEHCILE, THE OFFICER MAY SEARCH THE CONTAINER. IF THE OFFICERS DO NOT HAVE PROBABLE CAUSE TO SEARCH THE VEHICLE, THEY WILL NEED TO GET A SEARCH WARRANT TO SEARCH THE CONTAINER
(TERRY V. OHIO)(1968)
IN ORDER FOR AN INVESTIGATORY STOP TO BE REASONABLE, THE OFFICER "MUST BE ABLE TO POINT TO SPECIFIC ARTICULABLE FACTS WHICH, TAKEN TOGETHER WITH RATIONAL INFERENCES FROM THOSE FACTS, REASONABLY WARRANT THAT INTRUSION. UNDER TERRY- OFFICER MAY STOP, QUESTION AND PHYSICALLY DETAIN AN INDIVIDUAL, IF NECESSARY - THE USE OF HANDCUFFS IS PERMISSIBLE TO MAIN THE STATUS QUO OR TO PROTECT THE OFFICER.
New Jersey v. De Simone, 60 N.J. 319, 288 A.2d 849 (1972)
In De Simone, speaking for a unanimous Court, Justice Weintraub stated: On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store ... obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them. 288 A.2d at 850. The Superior Court of Pennsylvania used a De Simone analysis to uphold an "all persons present" warrant in which the accused was found to possess drugs while visiting the subject's apartment. Pennsylvania v. Heidelberg, 369 Pa.Super. 398, 535 A.2d 611 (1987). The Court in Heidelberg stated as follows: We do not sanction the blind issuance of all persons present warrants and have scrutinized strictly the one under consideration. However, the facts contained in this affidavit include: 1) the observation of ... cocaine available ... at the residence within twenty-four hours of the issuance of the warrant; 2) observations by three informants of drug sales at the residence; 3) a private residence to be searched; and 4) contraband which can easily be hidden on the body. Given these facts, we uphold the magistrate's determination that probable cause existed to believe that anyone at the residence on the night in question would be involved in illegal drug-related activities.
No-knock warrant
In the United States, a no-knock warrant is a warrant issued by a judge that allows law enforcement officers to enter a property without immediate prior notification of the residents, such as by knocking or ringing a doorbell. In most cases, law enforcement will identify themselves just before they forcefully enter the property. It is issued under the belief that any evidence they hope to find can be destroyed during the time that police identify themselves and the time they secure the area, or in the event where there is a large perceived threat to officer safety during the execution of the warrant. The Department of Justice writes: Federal judges and magistrates may lawfully and constitutionally issue "no-knock" warrants where circumstances justify a no-knock entry, and federal law enforcement officers may lawfully apply for such warrants under such circumstances. Although officers need not take affirmative steps to make an independent re-verification of the circumstances already recognized by a magistrate in issuing a no-knock warrant, such a warrant does not entitle officers to disregard reliable information clearly negating the existence of exigent circumstances when they actually receive such information before execution of the warrant.[1]
Ritter Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970); People Francis, 71 Cal. 2d 66, 71, 450 P.2d 591, 594 (1969); People Vigil, 175 Colo. 421, 427, 489 P.2d 593, 596 (1971).
In these circumstances, officers are not required to choose among several suspects similarly situated, when any or all of the occupants may have committed the offense or aided and abetted in its commission. "Possession" of a drug does not have to be exclusive, but may *336 be joint.
THE 4TH AMENDMENT DOES NOT PROTECT AGAINST ALL SEARCHES AND SEIZURES,
JUST UNREASONABLE ONES
CURTILAGE
LAND ASSOCIATED WITH THE HOME- 4TH AMENDMENT PROTECTION TO THE CURTILAGE
EXIGENT CIRCUMSTANCES
SITUATIONS WHERE THE POLICE MAY COME INTO A PERSON'S HOME: -SEARCH WARRANT -CONSENT- FROM SOMEONE WHO IS AUTHORIZED TO GIVE CONSENT -EXIGENT SITUATION -VALID PROTECTIVE SWEEP
SPIVEY V. COMMONWEALTH, 23 VA. APP. 715 (1997)- CONVICTIONS
SPIVEY WAS CONVICTED IN A BENCH TRIAL FOR POSSESSING BOTH COCAINE AND MARIJUANA WITH THE INTENT TO DISTRIBUTE, ON APPEAL, SHE CONTENDS THAT THE TRIAL COURT: 1. ERRONEOUSLY DECLINED TO SUPRESS EVIDENCE RESULTING FROM AN UNLAWFUL "NO KNOCK" ENTRY, INCIDENTAL TO THE EXECUTION OF A SEARCH WARRANT 2. IMPROPERLY RECEVIED INTO EVIDENCE ITEMS OMITTED FROM RELATED EVIDENCE
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- conclusion
On the facts of this case, we are of opinion the officers had probable cause to arrest the defendant for possession of the drugs found in open view in the living room. Therefore, the contemporaneous search of defendant was valid without regard to the drugs found on his person. Since the search was a valid search incident to arrest, the drugs discovered in his pocket were admissible and the judgment is I'ANSON, J., concurs in the result. Affirmed.
COMMONWEALTH V. ROBERTSON
PROTECTIVE SWEEP DOES NOT APPLY FOR OFFICERS GOING THROUGH A BARICADED DOOR AFTER APPREHENDING THE DEFENDENT
PROTECTIVE SWEEP VS. EXIGENT (EMERGENCY) SEARCH
PROTECTIVE SWEEP- CANNOT CONDUCT FULL SEARCH EXIGENT (EMERGENCY) SEARCH- CAN CONDUCT FULL SEARCH
Probable Cause
Probable cause must be based on factual evidence and not just on suspicion. Most probable cause sources can be placed into four categories. These categories are: Observation - This is information that the officer obtains through their senses, such as sight, smell or hearing. This category is also used when an officer detects a familiar pattern of criminal activity that contains suspicious behaviors (i.e., flashing headlights, circling around a certain neighborhood.) Expertise - These are skills that officers are specially trained in, such as: being able to read gang graffiti and tattoos, detecting tools that are used in burglaries or knowing when certain movements or gestures indicate that a criminal activity is about to occur. Information - Statements provided by witnesses and victims, information provided by informants, and announcements made through police bulletins and broadcasts. Circumstantial Evidence - This is indirect evidence that implies that a crime has occurred but does not directly prove it.
EXIGENT CIRCUMSTANCES-
RAPE, ROBBERY, BURGLARY, --- THE SERIOUSNESS OF THE CRIME IS KEY!! CANNOT GO IN TO ENSURE THAT THE DEFENDANT WILL NOT DESTROY BAD CHECKS. PROPERTY CRIMES, GRAND LARCENY,- NOT GONNA CUT IT.
IF TIPSTER GIVES NAME- MAY LEAD TO PROBABLE CAUSE. IF TIPSTER JUST HANGS UP-
THEN IT WILL NOT LEAD TO PROBABLE CAUSE
IF A DEFENDANT RUNS AND THROWS OUT STUFF OUT OF HIS POCKET- ABANDONMENT HAS TO BE VOLUNTARILY
THEN THEY CANNOT USE A MOTION TO SUPPRESS FOR THE SEARCH BECAUSE HE ABANDONED THE PROPERTY, THEREFORE ALLOWING THE OFFICER TO PICK IT UP AND NOT NEEDING PROBABLE CAUSE FOR THE SEIZURE
OPEN FIELDS AND ABANDONED PROPERTY
THERE IS NO EXPECTATION OF PRIVACY TO THE OPEN FIELD-
UNITED STATES V. SOKOLOW, U.S. (1989)
TO MAKEA LEGAL INVESTIGATORY STOP, AN OFFICER MUST POSSESS REASONABLE, ARTICULABLE SUSPICION THAT "CRIMINAL ACTIVITY MAY BE AFOOT."
COURTS CONSIDER:
TOTALITY OF CIRCUMSTANCES
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- When the officers knocked on the door and announced they had a search warrant
they heard the occupants scurrying around in the apartment. No one inside answered the knock; the door had to be kicked open to gain entry. On a living room table in open view were controlled drugs, the possession of which constituted an offense committed in the presence of the officers. No one stepped forward to claim the drugs.
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- CHARGES
That Julian Victor Italiano on the 13th day of July, in the year one thousand nine hundred and seventy-two, in the said City, unlawfully and feloniously did knowingly or intentionally possess a controlled drug, to-wit: Methylenedioxyamphetamine {MDA), in violation of Section 54-524.101 of the Code of Virginia of 1950, as amended, against the peace and dignity of the Commonwealth of Virginia. Upon the testimony of, Trooper J. T. Weakley sworn in Court, and sent to the Grand Jury to give evidence.
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)-The "quantum of information"
The "quantum of information" in the circumstances of this case constituted probable cause to arrest defendant for the possession of controlled drugs prior to the search which uncovered drugs on his person. But defendant says that "[such] a search of the person can only be lawful if the arrest precedes the search . . ." We disagree. A general rule recognized by both federal and state courts is that when probable cause exists to arrest a person, a constitutionally permissible search of the person incident to arrest may be conducted by an officer either before or after the arrest if the search is contemporaneous with the arrest. E.g., United States Skinner, 412 F.2d 98, 103 (8th Cir.) cert. denied, 396 U.S. 967 (1969); Tinney Wilson, 408 F.2d 912, 917 n.3 (9th Cir. 1969); Holt Simpson, 340 F.2d 853, 856 (7th Cir. 1965); People Simon, 45 Cal. 2d 645, 648, 290 P.2d 531, 533 (1955); Jones People, 167 Colo. 153, 155, 445 P.2d 889, 890 (1968); State LeClair, 304 A.2d 385, 387 (Me. 1973).
Howard Commonwealth, 210 Va. 674, 678, 173 S.E.2d 829, 833 (1970)
{"Probable cause exists where the facts and circumstances known to the officer warrant a man of reasonable caution in believing the suspect has committed an offense."
Legal burden of proof
The burden of proof (Latin: onus probandi) is the duty of a party in a trial to produce the evidence that will shift the conclusion away from the default position to that party's own position.
TO OBTAIN A SEARCH WARRANT
To obtain a search warrant, an officer must prove to a magistrate or judge that probable cause exists based upon direct information (i.e., the officer's personal observation) or hearsay information. Hearsay information can even be obtained by oral testimony given over a telephone or from an anonymous or confidential informant, so long as probable cause exists based on the totality of the circumstances. Police can seize both property and persons under a search warrant. The standard for a search warrant is lower than the quantum of proof required for a later conviction. The rationale is that evidence police collect without a search warrant may not be sufficient to convict, but may be sufficient to suggest that a warrant would allow police to find enough evidence to convict.
Husty United States, 282 U.S. 694, 700, 51 S. Ct. 240, 241, 75 L. Ed. 629 (1931)."
{"When the evidence shows that probable cause exists for arresting a suspect for a felony, and it is clear that evidence seized in a contemporaneous search of the suspect's person was not necessary to establish probable cause, the search is incidental to the arrest and is valid whether it takes place at the moment the arresting officer takes the suspect into custody or when he announces that the suspect is under arrest. Husty United States, 282 U.S. 694, 700, 51 S. Ct. 240, 241, 75 L. Ed. 629 (1931)."
writ of error and supersedeas- ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)-
Upon the petition of Julian Victor Italiano a writ of error and supersedeas is awarded him to a judgment rendered by the Circuit Court of the City of Hampton on the 30th day of November, 1972, in a prosecution by the Commonwealth against the said petitioner for a felony: but said supersedeas, however, is not to operate to discharge the petitioner from custody, if in custody, or to release his bond if out on bail. This writ of error, however, is limited to the consideration of assignment of error No. 3 which reads as follows: 11 3. The search of the person of the defendant was unlawful." On further consideration whereof, it is ordered that the parts of the record to be printed or reproduced in the appendix are to be limit~d to those parts of the record germane to assignment of error No. 3, and the briefs to be filed shall be limited to such discussion as is relevant to the assignment of error upon which this writ of error is awarded. The petition for writ of error is refused as to the remaining assignments of error.
CONSENT TO SEARCH- NOT ONLY HAS TO BE:
VOLUNTARY AND IT MUST BE PROACTIVE
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- regarding
search and seizure- incident to lawful arrest- probable cause
prima facie
[Latin, On the first appearance.] A fact presumed to be true unless it is disproved. In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation. In legal practice the term generally is used to describe two things: the presentation of sufficient evidence by a civil claimant to support the legal claim (a prima facie case), or a piece of evidence itself (prima facie evidence).
Commonwealth v. Graciani, 381 Pa.Super. 626, 554 A.2d 560 (1989)
[t]hough it is certainly possible, even probable, that innocent third parties who happen to be at the wrong place at the wrong time may be subjected to searches under such warrants, the nexus between the person to be searched and the nature and the seriousness of the criminal conduct suspected on probable cause, nonetheless, renders the probability of their culpable participation in the crime suspected sufficient to warrant a search of their person ...
ITALIANO V. COMMONWEALTH, 211 VA. 334- (1973)- MOTION TO QUASH AND SUPPRESS EVIDENCE
and moves the Court for an order quashing the Search Warrant for the following reasons: 1. The Affidavit and Search Warrant are defective insofar as they fail to allege a crime pursuant to Sections 54-524.80 - 524.84 of the 1950 Code of Virginia, as amended, having been specifically deleted from the Code {1972 Supp.). 2. The Search Warrant is defective insofar as Sections 19.1 - 87.1 of the 1950 Code of Virginia, as amend~d, requires the person conducting the search to list the items seized on the back of the Search Warrant and certify same. There is an appropriate place on the back of the Search Warrant for the person conducting the search to so certify and he has failed to do .so in accordance with the law. 3. The sea~ch of the person of the defendant was unlawful there having been no arrest prior to such search and no probable cause at that juncture for an arrest had there been one.
Per Curiam.
by decision of a judge, or of a court in unanimous agreement.
