This site is only an information site on the law in Virginia. The following information is not intended as legal advice and should not be relied upon as accurate or current. Consult an Attorney, or the Commonwealth's Attorney's Office or the Office of the Attorney General.
 

"You'l have seen your Instructions to propose Independance and our resolutions to form a Government. The Political Cooks are busy in preparing the dish, and as colo. Mason seems to have the Ascendancy in the great work, I have Sanguine hopes it will be framed so as to answer its end, Prosperity to the Community and Security to Individuals, but I am yet a stranger to the Plan." - Edmund Pendleton to Thomas Jefferson, May 24th, 1776. Also cite as: 1 Julian P. Boyd, The Papers of Thomas Jefferson, 296 (1950).

Constitutional Law Maxims

1) "A Constitution  is that by which the powers of government are limited...And can the legislature impugn that charter under which they claim, and to which by their acts they themselves have acknowledged an obligation? I apprehend not, nor can any argument against this position be drawn from an acquiescence in some acts which may be unconstitutional...I consider the people of this country as the only sovereign power. I consider the legislature as not sovereign but subordinate; they are subordinate to the great constitutional charter, which the people have established as a fundamental law, and which alone has given existence and authority to the legislature... [i]f the legislature should deprive a man of the trial by jury there the controversy is between the legislature on one hand, and the whole people of Virginia (though the medium of an individual) on the other, which people have declared that the trial by jury shall be held sacred...

What is the Constitution but the great contract of the people, every individual whereof having sworn allegiance to it? A system of fundamental principles, the violation of which must be considered as a crime of the highest magnitude. That this great and paramount law should be faithfully and rightfully executed, it is divided into three departments, to wit: the legislative, the executive, and judiciary, with an express restraint upon all, so that neither shall encroach on the rights of the other. In the Bill of Rights many things are laid down, which are reserved to the people; trial by jury, on life and death, liberty of conscience, &c. Can the legislature rightfully pass a law taking away these rights from the people? Can the judiciary pass sentence without a conviction of a citizen by twelve of his peers? Can the executive do anything forbidden by this bill of rights, or the constitution? In short, can one branch of the government call upon another to aid in the violation of this sacred letter? The answer to these questions must be in the negative.... The interpretation of the laws is the proper and particular province of the courts, A constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or, in other words, the constitution ought to be preferred to the statutes; the intention of the people to the intention of their agents." Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 24 (1793).

2) "The Constitution is the fundamental law of Virginia. It is the Charter by which our people have consented to be governed; it sets forth the basic rights and principles sought to be maintained  and preserved in a free society; it establishes  the organizational structures of State and local governments; and it provides for the financing of governmental functions by taxation. See Commonwealth v. Newport News, 158 Va. 521, 545, 164, S.E. 689, 696 (1932). Being the document by which the powers of government are limited, it is the creator of the branches of government. See Kamper v. Hawkins, 3 Va. (1 Va. Cases) 20, 24 (1793)., Coleman v. Pross, 219 Va. 143. (1978).

3) "This axiom stems from basic principles of separation of powers. ‘It is emphatically the province and duty of the judicial department to say what the law is.’ (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Virginia courts do not delegate that task to executive agencies.” Finnerty v. Thorton Hall, Inc., 42 Va. App. at 628, 593 S.E.2d 568 (2004).

4) “The right to refuse to answer such questions before any judicial tribunal was the well-settled law of England long before the separation of the American colonies from the mother country; but the State of Virginia, ever foremost in proclaiming principles of personal liberty and security, and providing safeguards to individual rights, was unwilling, when she assumed the attitude of an independent and sovereign State, to leave this great principle and others of kindred character subject, as at common law, to the mutations of legislative will or to the hazard of judicial discretion. She therefore thought proper, as far back as June 12th, 1776, and prior to the declaration of independence, when forming her own State Constitution, to make a solemn declaration of the rights of the good people of Virginia, 'which rights do pertain to them and their posterity as the basis and foundation of government." And we find that by the 8th section of that declaration it is provided as follows:

"That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers."

This section was framed nearly one hundred years ago by "men of the days gone by." It was framed for the protection of the citizen, and announced great principles of individual right, to be secured to the people of Virginia and their posterity forever; and it stands to this day, untouched in word, syllable or letter, a part of our State Constitution, and a bulwark and safeguard to the citizen, having for near a century withstood the shock of revolution and the rage of innovation. ” Cullen v. Commonwealth, Va. (24 Gratt), 624, (1873).

5) “Ours is a government whose powers are limited by the constitution. Where statutory enactments and common law rules come into conflict with constitutional principles, the latter must prevail.” Commonwealth v. Owens-Corning Fiberglass, 238 Va. 595, 385 S.E. 2d 865 (1989).

6) “The office and purpose of the constitution is to shape and fix the limits of governmental activity…The purpose and object sought to be attained by the framers of the constitution is to be looked for, and the will and intent of the people who ratified it is to be made effective.” Dean v. Paolicelli, 194 Va. 219, (1952).

7) “What the Constitution says shall not be done, cannot be done. If the Constitution says something is not a proper governmental function, no amount of legislative language can make it so.” Button v. Day, 208 Va. 494, 158 S.E.2d 735 (1968 ).

8) “Man as an individual possesses certain rights which are called inherent rights…which are not surrendered by entering into an organized society.” R. F. & P. Co. v. City of Richmond, 145 Va. 225, 238, 133 S.E. 800 (1926).

9) "The Declaration of Rights of the State of Virginia, as it existed at the time of the passage of this act and under the new Constitution, guarantees in all capital or criminal prosecutions the right of trial by jury, in order 'that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.'

The word "Liberty" as used in the Constitution of the United States and the several states, has frequently been construed, and means more than mere freedom from restraint. It means not merely the right to go where one chooses, but to do such acts as he may judge best for his interest, not inconsistent with the equal right of others; that is, to follow such pursuits as may be best adapted to his faculties, and which give him the highest enjoyment. The liberty mentioned is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purpose mentioned. These are individual rights, formulated as such under the phrase "pursuit of happiness" in the Declaration of Independence, which begins with the fundamental principle that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." Young v. Commonwealth, 101 Va. 853, 45 S.E. 327 (1903).

10) “This principle supposed, the court are led to consider, whether the people have secured, or departed from it, in the constitution or form of government. In that solemn act, they discover the people distributing the governmental powers into three great branches, legislative, executive and judiciary, in order to preserve that equipoise, which they judged necessary to secure their liberty, declaring that those powers be kept separate and distinct from each other, and that no person shall exercise at the same time an office in more than one of them.” Cases of the Judges of the Court of Appeals, 8 Va. (4 Call 135) (1788).

11) "Among all the advantages, which have arisen to mankind, from the study of letters, and the universal diffusion of knowledge, there is none of more importance, than the tendency they have had to produce discussions upon the respective rights of the sovereign and the subject; and, upon the powers which the different branches of government may exercise. For, by this means, tyranny has been sapped, the departments kept within their own spheres, the citizens protected, and general liberty promoted. But this beneficial result attains to higher perfection, when those, who hold the purse and the sword, differing as to the powers which each may exercise, the tribunals, who hold neither, are called upon to declare the law impartially between them... I have heard of an English chancellor who said, and it was nobly said, that it was his duty to protect the rights of the subject, against the encroachments of the crown; and that he would do it, at every hazard. But if it was his duty to protect a solitary individual against the rapacity of the sovereign, surely, it is equally mine, to protect one branch of the legislature, and, consequently, the whole community, against the usurpations of the other: and, whenever the proper occasion occurs, I shall feel the duty; and, fearlessly, perform it." - Judge George Wythe, Commonwealth v. Caton & al. 8 Va. 4 call 5 (1782).

12) "It has been very properly said, on all sides, that this act, declaring the rights of the citizens, and forming their government, divided it into three great branches, the legislative, executive, and judiciary, assigning to each its proper powers, and directing that each shall be kept separate and distinct, must be considered as a rule obligatory upon every department, not to be departed from on any occasion. But how far this court, in whom the judiciary powers may in some sort be said to be concentrated, shall have power to declare the nullity of a law passed in its forms by the legislative power, without exercising the power of that branch, contrary to the plain terms of that constitution, is indeed a deep, important, and I will add, a tremendous question, the decision of which might involve consequences to which gentlemen may not have extended their ideas. I am happy in being of opinion there is no occasion to consider it upon this occasion; and still more happy in the hope that the wisdom and prudence of the legislature will prevent the disagreeable necessity of ever deciding it, by suggesting the propriety of making the principles of the constitution the great rule to direct the spirit of their laws...Mercy—divine attribute! Often necessary to the best: sometimes due to the worst: and, from the infirmities of our nature, always to be regarded, when circumstances will admit of it. But how, in public concerns, this is to be accomplished with just attention to the general welfare, has, in every age, been a desideratum with statesmen and legislators. For, in human associations, other considerations, as well as the dictates of mercy, must be attended to. Compassion for the individual must frequently yield to the safety of the community....Chancellor Blair and the rest of the judges, were of opinion, that the court had power to declare any resolution or act of the legislature, or of either branch of it, to be unconstitutional and void; and, that the resolution of the house of delegates, in this case, was inoperative, as the senate had not concurred in it." Commonwealth v. Caton 8 Va. 4 call 5 (1782).

13) “When a question is made as to the constitutionality of a law, it is not to be decided by repeated acts of the legislature on which no question has been raised or adjudged, but by the bill of rights and the constitution.” Goddin v. Crump &c., 35 Va. 120 (8 Leigh) (1837).

14) "The Legislature, it is true, to a large extent represents the Commonwealth, but it does so in subordination to the Constitution of the State. It can do nothing which that instrument prohibits and, in what is confided to it, must conform in its mode of action to the requirements of the Constitution. If it transcends its power, or if it acts in contravention of the Constitution, its acts are void; they confer no rights and bind no man, and all the world is charged with notice of the limitations which the Constitution imposes”. Ellinger v. Commonwealth, 102 Va. 100, 45 S.E. 807 (1903).

15) “By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives - or the hallmarks - of democratic government.” INS v. Chadha, 462 U.S. 919 (1983).

16) “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, … One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

17) "It follows, from these premises, that before this great principle shall be departed from, it ought, at least, manifestly to appear, from the act of government itself, that an exception has been explicitly assented to by the people; in a case in any degree equivocal, the general principle would undoubtedly turn the scale.

There is no such exception to be found in the constitution of this commonwealth. That instrument, and the declaration of rights on which it is based, has no eye towards the subjects of foreign powers. It only purports to declare the rights, and settle the duties of those who are parties to the compact. There is not only no such exception in that instrument, but, on the contrary, the converse is explicitly declared and expressed. The declaration of rights is stated to have been made by the representatives "of the good people of Virginia;" and it is declared, "that these rights do pertain to them, and their posterity, as the basis and foundation of government." " Custis v. Lane, 17 Va. 3 Munf. 579, (1813).

18) “Constitutional provisions in bill of rights and those merely declaratory of common law are usually considered self-executing. The same is true of provisions which specifically prohibit particular conduct. Provisions of a Constitution of a negative character are generally, if not universally, construed to be self-executing.” Robb v. Shockoe Slip Found, 228 Va. 678, 324 S.E. 2d 674 (1985).

19) “A self-executing provision pronounces the will of the people. The will of the people is paramount in determining whether a constitutional provision is self-executing and the modern doctrine favors the presumption that constitutional provisions are intended to be self-operating. This is so because in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.” Gray v. Byrant, Fla. 125 So.2d 846, 851 (1960).

20) “Prohibitory provisions in a constitution are self-executing to the extent anything done in violation of them is void.” State v. Nelson, 210 Kan. 439, 502 P.2d 841 (1972).

21) "And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts and law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defense. " Tucker, Blackstone’s Commentaries, Vol 2. Chapter 1. Of the Absolute Rights of Individuals, (1803).

22) “[w]here a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself.” Davis v. Burke, 179 U.S. 399 (1900).

23) "The necessity for enabling legislation is to be determined from a construction of the provision and, to be necessary, there must be some indication that something is left for the legislature to do or by its very nature the provision renders such future legislation necessary. [citations ommited] In light of these authorities the opinion has been attained that the provisions of the amendment authorizing the tax levy are in the form of a law declarative of the will of the sovereignty and in no sense contains any command or direction to the legislature for future action and is therfore self-executing...no legislation may restrict or alter a self-executing constitutional provision." In re Opinion of the Justices 252 Ala. 199, 40 So.2d 330 (1949).

24) "It is settled by very high authority that in placing a construction on a Constitution or any clause or part thereof, a court should look to the history of the times and examine the state of things existing when the Constitution was framed and adopted, in order to ascertain the prior law, the mischief and the remedy." Almond v. Day, 197 Va. 782 (1956).

25) "The Police power is not paramount to the Constitution, but its free exercise is never interfered with unless plainly in conflict therewith." Richmond v. Va. Ry. & P. Co. 141 Va. 69 (1926).

26) “While it may be a police power in the sense that all provisions for the health, comfort, and security of the citizens are police regulations, and an exercise of the police power, it has been said more than once in this court that, where such powers are so exercised as to come within the domain of Federal authority as defined by the Constitution, the latter must prevail.” Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59 (1913).

27) " It must never be forgotten, however , that the liberties of the people are not so safe under the gracious manner of government, as by the limitation of power." Richard Henry Lee, May 28, 1789. Ballagh, James, The Letters of Richard Henry Lee, Vol. II. p. 487. (1914).

28) "the fact that the governing majority in a State has traditionally  viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368-69 (2005).

29) "It is a fundamental principle of our system of government that the right of men are to be determined by the law itself, and not by the let or leave of administrative officers or bureaus. This principle ought not to be surrendered for convenience or in effect nullified for the sake of expediency. It is the prerogative and function of the legislative branch of the government, whether State or municipal, to determine and declare what the law shall be, and the legislative branch of the government may not divest itself of this function or delegate it to executive or administrative officers." Assaid v. Roanoke, 179 Va. 47. (1941).

30) "The Legislature of the State is declared by our Constitution to be a complete Legislature, and consequently has all the powers of Sovereignty, except so far as they are limited by the Constitutions of Virginia and the United States. Our Bill of Rights is a part of our Constitution ; and the general principles thereby declared are Fundamental Laws, except so far as they are modified by the Constitution itself. They limit the powers of the Legislature, and prohibit the passing any Law violating those principles. The first Article of this declares: "That all men are by nature free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." To deprive a citizen of any property already legally acquired, without a fair compensation, deprives him quoad hoc, of the means of possessing property, and of the only means, so far as the Government is concerned, besides the security of his person, of obtaining happiness. Liberty itself consists essentially, as well in the security of private property, as of the persons of individuals; and this security of private property is one of the primary objects of Civil Government, which our ancestors, in framing our Constitution, intended to secure to themselves and their posterity, effectually, and for ever. The Legislature, in passing the Act of 1819, did not intend to invade private rights, but proceeded, no doubt, upon the belief that the rights of the owners of mills generally, were subordinate to the public right of navigation, and particularly in respect to the Slate River; a question, on which there may well be a difference of opinion. The Constitution, however. declares, that the Legislative and Judicial Departments, shall be distinct and separate; so that, neither shall exercise the powers properly belonging to the other. The questions, whether the rights of the owners of mills, or of the public, for the purposes of navigation, are preferred by Law generally, or in any particular case, are emphatically Judicial in their nature, depending on the effect and construction of former Laws; and, if upon a full and careful consideration, we conscientiously differ in opinion in any particular case we are bound by the highest obligations of duty to ourselves and our country, to pursue our own judgment." Crenshaw v. Slate River Co., 6 Rand. (27 Va.) 245 (1828).

Unlawful Search or Seizure by Police

Constitution of Virginia

Article 1, Section 10. General warrants of search or seizure prohibited.

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.

United States Constitution
 

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 

State Law Against Arrest does Not Implicate 4th Amendment Seizures When Probable Cause Exists to Arrest Suspect. Violation of State Law Against Arrest Creates A Cause of Action For Disciplinary Action and Tort Actions Against the Individual Arresting Officers

Virginia v. Moore __ , US __ Sp. Ct (2008).

" Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U. S. 218 (1973). We have described this rule as covering any “lawful arrest,” id., at 235, with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid. (emphasis added). Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. See Brief for Respondent 32–33 (citing People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923); People v. DeFore, 242 N. Y. 13, 17–19, 150 N. E. 585, 586 (1926)). But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson used “lawful” as shorthand for compliance with constitutional constraints. The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” Robinson, supra, at 234–235. Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls here. The state officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Robinson, supra, at 235."

Justice Ginsburg Concurring in the Opinion:

" I agree with the Court’s conclusion and its reasoning, however, to this extent. In line with the Court’s decision in Atwater v. Lago Vista, 532 U.S. 318, 354 (2001), Virginia could have made driving on a suspended license an arrestable offense. The Commonwealth chose not to do so. Moore asks us to credit Virginia law on a police officer’s arrest authority, but only in part. He emphasizes Virginia’s classification of driving on a suspended license as a nonarrestable misdemeanor. Moore would have us ignore, however, the limited consequences Virginia attaches to a police officer's failure to follow the Commonwealth's summons only instruction. For such an infraction, the officer may be disciplined and the person arrested may bring a tort suit against the officer. But Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons."

 The Right to not Answer the Door

Goode v. Commonwealth, Va. App. (2008 Unpublished).

"To help Petty retrieve personal property, Officer Norton knocked on the door repeatedly and announced himself as "Richmond Police" in an increasingly loud voice. This continued for eight to ten minutes by both Norton and Schneider with no response. "After receiving no answer, they should have left, as the purpose of the visit to that property was terminated due to the lack of response from any occupant. Otherwise, the well-established right of citizens to refuse to answer their door would be illusory." Divello v. State, 782 N.E.2d 433, 439 (Ind. Ct. App. 2003). Although there was a gap at the very top of the window above the curtains, the curtains were closed at the bottom clearly indicating an intention to maintain privacy and prevent the motel room from being viewed by visitors walking by the window. Norton, who was over six feet tall, admitted he could not see into the room from the sidewalk where persons would be expected to be. And Goode, having closed his curtains such that persons simply walking by could not see into his room, could not have reasonably contemplated the actions of Norton in getting up on a railing to look into a gap at the top of the window to see if he was in there. Considering the "totality of the circumstances," Robinson, 47 Va. App. at 551, 625 S.E.2d at 659, when Norton stepped up onto the railing and peered over the curtains into Goode's room after repeatedly knocking and announcing himself at 2:30 in the morning merely to assist a citizen with retrieving personal property, he violated Goode's expectation of privacy in his motel room and conducted an illegal search. "

Warrentless Search in Home for Shotgun and Shells Did not Meet Exigent Circumstances or Protective Sweep Rule

Commonwealth v. Robertson, __VA. __, S.E.2d __,__ (2008).

"In this case, Robertson was arrested outside of his home. Given the information provided to the police by Robertson and Cobbs, and the officers’ observations during their extended standoff with Robertson, once Robertson was arrested, there were no articulable facts to indicate that Robertson’s home harbored anyone posing a danger to the individuals present at the arrest scene. The protective sweep exception is not applicable in this instance where the officers broke through the barricaded door of Robertson’s home, after apprehending Robertson. The Court of Appeals, therefore, did not err in ruling that the protective sweep exception does not apply in this case.... Here, the officers entered Robertson’s home after Robertson had been apprehended. Robertson and Cobbs had informed the police officers that there was no one else in the home, and perhaps more importantly, the officers’ observations during their extensive surveillance of the premises for an extended period of time, indicated that there was no one present in the home after Robertson’s arrest. Further, there was no reason to believe that contraband was about to be removed or destroyed, little danger to anyone left to guard the site, no likelihood of any suspect escaping, and no hot pursuit. Thus, there is no evidence of an exigency that justifies the officers’ breaking through the barricaded door of Robertson’s home without obtaining a warrant. The Court of Appeals, therefore, did not err in holding the exigent circumstances exception to the Fourth Amendment warrant requirement inapplicable. The officers’ search of Robertson’s home was in violation of Robertson’s rights under the Fourth Amendment. Additionally, the Court of Appeals correctly applied the proper standard of review."

Appropriate Response to Police Terminates Investigatory Stop

Asble v. Commonwealth, __Va. App. ___S.E.2d __,__ (2007).

"Davis illuminated the interior of the car with a flashlight. Mrs. Asble was sitting cross-ways on the rear seat. Davis "asked were they okay" and "asked [Asble] what he was doing." Asble replied that his wife was sick. Davis made no further inquiry as to her sickness and made no offer of help. He asked Asble to get out of the car. Asble complied. Davis testified that at that point, Asble was not free to leave. Davis frisked Asble. He found no weapon. Based upon Asble's arm movement, Davis thought there might be a weapon in the car and decided to "sweep" the car. He asked Mrs. Asble to get out of the car. She complied...

Asble's reply that his wife was sick was an appropriate response to Davis's questions. Being thus informed, Davis made no further inquiry as to the nature of her illness and made no offer of assistance. Rather, he removed Asble from the car and began a criminal investigation. At that point, the consensual nature of the encounter ended....Thus, our inquiry must be whether Davis had before him, at that time, sufficient articulable facts to support a reasonable and particularized suspicion that Asble was engaged in criminal activity and was armed and dangerous. We conclude that he did not. In the absence of such a scenario, he lacked authority to remove Asble from his car and to search the car. "

Unlawful Seizure of Vehicle and Driver Also Seizes Passengers

Brendlin v. California, __ U.S. ____ SP. Ct. (2007).

"Indeed, the consequence to worry about would not flow from our conclusion, but from the rule that almost all courts have rejected. Holding that the passenger in a private car is not (without more) seized in a traffic stop would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal.7 The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of “roving patrols” that would still violate the driver’s Fourth Amendment right. See, e.g., Almeida-Sanchez v. United States, 413 U. S. 266, 273 (1973) (stop and search by Border Patrol agents without a warrant or probable cause violated the Fourth Amendment ); Prouse, supra, at 663 (police spot check of driver’s license and registration without reasonable suspicion violated the Fourth Amendment )."

High Speed Chase Termination by Force Does Not Violate Fourth Amendment

 Scott v. Harris, __US__ SP. Ct. (2007)

"Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the Fourth Amendment . Scott does not contest that his decision to terminate the car chase by ramming his bumper into respondent’s vehicle constituted a “seizure.” “[A] Fourth Amendment seizure [occurs] … when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U. S. 593, 596–597 (1989) (emphasis deleted). See also id., at 597 (“If … the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure”). It is also conceded, by both sides, that a claim of “excessive force in the course of making [a] …‘seizure’ of [the] person … [is] properly analyzed under the Fourth Amendment ’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U. S. 386, 388 (1989) . The question we need to answer is whether Scott’s actions were objectively reasonable.8" ...So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability. It was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.10"

Unlawful Seizure and Pat Down for Weapon

Roulhac v. Commonwealth, __ Va. App. __ S.E. 2d __,__ (2007).

Protective Sweep for Firearm

Williams v. Commonwealth, __Va. App. __S.E.2d__, __ (2007) En Banc.

Arrest of Person for Illegal drugs outside the Home Does not Create Probable Cause for Warrant to Search the Home

Cunningham v. Commonwealth, __Va. App. __ S.E.2d __,__ (2007).

"Thus, we hold the affidavit was so lacking in probable cause as to render official belief in the warrant objectively unreasonable. Accordingly, the good faith exception does not prevent application of the exclusionary rule in this case where probable cause was so lacking."

Knock and Announce Not Required For Seizure of Evidence

Perry v. Commonwealth, 49 Va. App. 65, 636 S.E.2d 891 (2006).

"On appeal, appellant contends that the facts contained in the affidavit were not sufficient to justify a "no-knock entry" into appellant's home. We do not address whether officers violated the knock-and-announce rule, as the United States Supreme Court's recent decision in Hudson v. Michigan, 126 S. Ct. 2159 (2006), directs that the remedy for such a violation is not the suppression of the evidence recovered from appellant's residence. "[T]he knock-and-announce rule has never protected . . . one's interest in preventing the government from seeing or taking evidence described in a warrant." Hudson, 126 S. Ct. at 2165.

Instead, the rule was developed (1) to protect against violence raised in self-defense by a resident surprised by an unannounced entry, id., (2) to give individuals "'the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry,'" id. (quoting Richards v. Wisconsin, 520 U.S. 385, 393 n.5 (1997)), and (3) to give "residents the 'opportunity to prepare themselves for' the entry of the police," id. (quoting Richards, 520 U.S. at 393 n.5). Since these interests "have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable." Hudson, 126 S. Ct. at 2165. As such, the trial court did not err in denying appellant's motion to suppress."

Must Have Consent From Both People Living in Same House

Georgia v. Randolph, 547 U.S. __ (2006).

"The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U. S. 177 (1990) ; United States v. Matlock, 415 U. S. 164 (1974) . The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him."

Rooming House Common Area Protected Under the 4th Amendment

Logan v. Commonwealth, 47 Va. App. 168, 622 S.E.2d 771 (2005).

"Logan's residence was not a vacation home, but the regular dwelling for fifteen people. The rooming house "was not a hotel, restaurant, or public place where the public was invited or had the right to come and go at will." Brown v. United States, 83 F.2d 383, 385 (3d Cir. 1936). The rooming house was Logan's home "and so far as the unlawful entry and search affected him,  it violated his constitutional rights." Id. at 386. We hold that the common areas of the rooming  house were part of Logan's "home" within the meaning of the Fourth Amendment. "

The Curtilage of the Home

 Robinson v. Commonwealth, 47 Va. App. 533, 625 S.E.2d 651, (2006). En Banc        /      Robinson v. Commonwealth, 46 Va. App. 23, 614 S.E.2d 667, 667 (2005)

"Because homeowners possess a reasonable expectation of privacy in the curtilage surrounding their homes, Oliver v. United States, 466 U.S. 170, 180 (1984), "the curtilage . . . warrants the Fourth Amendment protections that attach to the home." Id.; see also Jefferson v. Commonwealth, 27 Va. App. 1, 15, 497 S.E.2d 474, 481 (1998) ("Consistent with the common law understanding of the extent of the 'home,' the Supreme Court has held that the Fourth Amendment protections that apply to the house also apply to the 'curtilage' of the house."). Because the Fourth Amendment protects the curtilage to the same extent as the home, a police officer may not enter the curtilage without a warrant, exigent circumstances, or pursuant to an express or implied invitation from the occupant. See Payton v. New York, 445 U.S. 573, 589-90 (1980) ("To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances . . . ." (internal quotations omitted)).

Generally, the curtilage of a home is the "area around the home to which the activity of home life extends." Oliver, 466 U.S. at 180; see also Wellford v. Commonwealth, 227 Va. 297,  301, 315 S.E.2d 235, 238 (1984) (defining "curtilage" as the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling"). "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis." Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481 (citing United States v. Dunn, 480 U.S. 294, 301 n.4 (1987)). In determining whether the area in question constitutes curtilage, "particular reference" to the following four factors is helpful:

[1] the proximity of the area claimed to be curtilage to the home,

[2] whether the area is included within an enclosure surrounding the home,

[3] the nature of the uses to which the area is put, and

[4] the steps taken by the resident to protect the area from observation by people passing by.

Dunn, 480 U.S. at 301; Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481. "[T]hese factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally  relevant consideration-whether the area in question is so intimately tied to the home itself that  it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301."

The term curtilage when living in an apartment complex has been adjuticated by the Virginia Court of Appeals

Jermaine Harris v. Commonwealth, Va. App.(2001 Unpublished):

 
"Under the Fourth Amendment, a search is an invasion into a space or area where a person has a reasonable expectation of privacy in the 'person,' or the person's 'houses,' 'papers,' or 'effects.'" Hughes v. Commonwealth, 31 Va. App. 447, 455, 524 S.E.2d 155, 159 (2000).

To determine whether a citizen "enjoys a reasonable expectation of privacy . . . we consider whether he [or she] has exhibited an expectation of privacy in the object and whether that expectation is one that 'society is prepared to recognize as reasonable.'" Anderson v. Commonwealth, 25 Va. App. 565, 576, 490 S.E.2d 274, 279 (1997) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)), aff'd, 256 Va. 580, 507 S.E.2d 339 (1998). "[W]here private lands are exposed to observation by members of the public who may legitimately come upon the property, a citizen does not reasonably have an expectation of privacy in areas that the passing public can observe." Shaver, 30 Va. App. at 795, 520 S.E.2d at 396.

Here, appellant had no reasonable expectation of privacy in the front entrance to his apartment, an area "observable by members of the public who might approach [his] residence, pass by, or lawfully be upon [the] property."

Entry Into House Under Community Caretaker Doctrine Violated Fourth Amendment

Kyer v. Commonwealth, 45 Va. App. 473, 612 S.E.2d 213 (2005) (en banc).

"The initial entry, the court held, fell within the "community caretaker doctrine and/or exigent circumstances" exception to the warrant requirement...The mere discovery of an "open door" of a residence absent some other reason for concern "is not, in and of itself, a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property." State v. Christenson, 45 P.3d 511, 513 (Or. Ct. App. 2002) (emphasis added). "It is simply too common an event to create a concern of harm in the absence of other signs of trouble, such as evidence of a forced entry or a medical emergency; here, there were no such indications." Id. In short, when the "only evidence of an emergency was a door left open late on a summer night," we agree with other courts that "regardless of what the officers may subjectively have thought, a reasonable person would not believe an emergency existed." State v. Swenson, 799 P.2d 1188, 1190 (Wash. Ct. App. 1990); see also State v. Ryon, 108 P.3d 1032, 1047 (N.M. 2005) (noting that, under the emergency assistance doctrine, an "open door ought not be viewed as a general invitation to enter"). The police had no legal right, therefore, to enter the Kyer apartment uninvited. The trial court erred in concluding otherwise."

Sharpe v. Commonwealth 44 Va. App. 448, 455, 605 S.E.2d 346, 349 (2004).

"[S]earches and seizures inside a home without a warrant are presumptively  unreasonable. . . .  [T]he Fourth Amendment has drawn a firm line at the entrance to the house.  Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant."   Payton v. New York, 445 U.S. 573, 586-90, 100 S. Ct. 1371, 1380-82, 63 L. Ed. 2d 639 (1980).   "The [F]ourth [A]mendment rights of a guest in a motel room are equivalent to those of the  rightful occupant of a house," the warrantless entry of which is presumed unreasonable.  Servis  v. Commonwealth, 6 Va. App. 507, 514, 371 S.E.2d 156, 159 (1988). The United States Supreme Court has held that an overnight guest in a house has the  same sort of expectation of privacy that the Fourth Amendment protects, Minnesota v. Olson, 495 U.S. 91, 98-100, 110 S. Ct. 1684, 1689-90, 109 L. Ed. 2d 85 (1990), whereas "one who is merely present with the consent of the householder [does] not," Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373 (1998).  It has also held that one who is present on residential premises only briefly and for a strictly commercial rather than personal purpose  cannot demonstrate a legitimate expectation of privacy in those premises.  See id. Whether the privacy interest for personal overnight guests recognized in Olson extends to  the overnight guests of motel registrants, especially those guests of whose presence motel staff is  unaware, has not been resolved by the United States Supreme Court or any Virginia appellate  court.  Other courts considering the issue have held that motel registrants and overnight guests of  those registrants may have a reasonable expectation of privacy in the motel room.  See, e.g., Gordon, 168 F.3d at 1226; Wilson v. State, 98 S.W.3d 265, 269-70 (Tex. Ct. App. 2002).  Those  courts have uniformly "required a defendant to demonstrate that he was the registered occupant of the room or that he was sharing it with the person to whom the room was registered."   Gordon, 168 F.3d at 1226; see also Armour v. State, 762 N.E.2d 208, 213-14 (Ind. Ct. App. 2002); State v. Gonzalez, 85 P.3d 711, 714 (Kan. Ct. App. 2004).

Groh v. Ramirez, et al., 540 U.S. 551 (2004)
 

 
" It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted.6 Because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly "unreasonable" under the Fourth Amendment. The Court of Appeals correctly held that the search was unconstitutional....a reasonably competent public official should know the law governing his conduct....Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation. See Wilson v. Layne, 526 U. S. 603, 609 (1999). The answer depends on whether the right that was transgressed was " 'clearly established' "--that is, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."  Saucier v. Katz, 533 U. S. 194, 202 (2001).... No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional. See Payton, 445 U. S., at 586-588. Indeed, as we noted nearly 20 years ago in Sheppard: "The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional."  468 U. S., at 988, n. 5.8 Because not a word in any of our cases would suggest to a reasonable officer that this case fits within any exception to that fundamental tenet, petitioner is asking us, in effect, to craft a new exception. Absent any support for such an exception in our cases, he cannot reasonably have relied on an expectation that we would do so.

Petitioner contends that the search in this case was the product, at worst, of a lack of due care, and that our case law requires more than negligent behavior before depriving an official of qualified immunity. See Malley v. Briggs, 475 U. S. 335, 341 (1986). But as we observed in the companion case to Sheppard, "a warrant may be so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid."  Leon, 468 U. S., at 923. This is such a case."

Probable cause based on violation of the concealed weapon statute cannot justify the arrest of appellant, which occurred prior to discovery of the "gun."

Christopher Hardin v. Commonwealth, Va. App. (2004).
 

 
The Commonwealth conceded at trial that the police arrested appellant prior to the  "pat-down" and that the officers needed probable cause to support their discovery of the "gun."    As discovery of the "gun" occurred after the conceded arrest of appellant, probable cause based  on violation of the concealed weapon statute cannot justify the arrest of appellant, which  occurred prior to discovery of the "gun."  See Harris v. Commonwealth, 241 Va. 146, 155, 400  S.E.2d 191, 196 (1991) ("'As we have had occasion in the past to observe, "[it] is axiomatic that  an incident search may not precede an arrest and serve as part of its justification."'" (quoting  Smith v. Ohio, 494 U.S. 541, 543 (1990))).  The only justification offered for the arrest was the  presence of a "gun," hidden in appellant's pocket. As the officers did not have probable cause to arrest appellant, the trial court erred in  denying appellant's motion to suppress.  We, therefore, reverse the convictions and remand for a  new trial, if the Commonwealth be so inclined. "

Probable Cause Defined

Bristol v. Commonwealth, 47 Va. App. 584, 603, 625. S.E.2d 676, 685 (2006).

A. Probable Cause "[A]n assertion that the police lacked probable cause to arrest a defendant presents a question of both law and fact, which is reviewed de novo on appeal." McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 (2001); see Ornelas v. United States, 517 U.S. 690, 699 (1996). However, "we are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and we give due weight to the [reasonable] inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas, 517 U.S. at 699).

The legal standard of probable cause, as the term suggests, relates to probabilities that are based upon the factual and practical considerations in everyday life as perceived by reasonable and prudent persons. The presence or absence of probable cause is not to be examined from the perspective of a legal technician. Rather, probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable  caution to believe that an offense has been or is being committed.

Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). "In determining whether  probable cause exists[,] courts will test what the totality of the circumstances meant to police officers trained in analyzing the observed conduct for purposes of crime control." Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976). "'Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" Boyd v. Commonwealth, 12 Va. App. 179, 188-89, 402 S.E.2d 914, 920 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). Moreover, an officer investigating whether an offense has been or is being committed "is permitted to make 'common-sense conclusions about human behavior' in assessing a situation." Carson v. Commonwealth, 12 Va. App. 497, 502, 404 S.E.2d 919, 922 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)), aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412 (1991), aff'd, 244 Va. 293, 421 S.E.2d 415 (1992)."

"We hold the evidence, including the presence of so many visibly armed police officers  in a small space, ...supported the trial court's conclusion that  defendant was not free to leave.  Based on the Commonwealth's concession that Officer Spencer  lacked reasonable suspicion for a Terry stop, this seizure of defendant's person was  unreasonable.

 Further, the trial court's findings support the implicit conclusion that defendant's  purported consent to search was tainted by the illegal seizure.  See Harris, 266 Va. at 33-34, 581  S.E.2d at 210 (citing Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9  L. Ed. 2d 441 (1963)).

For these reasons, we affirm the granting of the motion to suppress and remand for further proceedings consistent with this opinion."
 

Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003).

"Under these circumstances, we believe that a reasonable person would not have known that the investigation of the traffic offense had terminated and, thus, would not have felt free to disregard the officer's questions or have felt free to leave.  Therefore, when Officer Davis began questioning Harris about possession of contraband, the encounter was not consensual and Harris was seized for purposes of the Fourth Amendment.  Because Officer Davis had neither a warrant nor reasonable suspicion to believe that Harris was engaged in any criminal activity, this seizure violated Harris's Fourth Amendment rights....The Commonwealth has the burden to establish that Harris'  consent to search was not "obtained by exploitation of the  illegal action."  Hart, 221 Va. at 288, 269 S.E.2d at 809.  Based on this record, we conclude that the Commonwealth failed  to meet this burden.  Thus, the evidence obtained as a result  of the illegal seizure should have been suppressed as the "fruit" of an illegal seizure." See Also: United States v. Mendenhall, 446 U.S. 544 (1980).

"Again, the Commonwealth misses the point.   Whether weapons were drawn or not is irrelevant to the question  whether such blocking would cause a reasonable person to believe  he or she is not free to leave the encounter....The Supreme Court has provided examples of circumstances  indicating the occurrence of a seizure.  These examples include  "the threatening presence of several officers, the display of a  weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating  that compliance with the officer's request might be compelled....Because Bolden suffered an illegal seizure, his consent to the search of his suitcase was tainted and ineffective to justify the search.  Florida v. Royer, 460 U.S. 491, 507-08 (1983)."

Reittinger v. Commonwealth, 260 Va. 232, 532 S.E.2d 25 (2000).
 

"While law enforcement officers may engage in consensual encounters with citizens, the Supreme Court has limited such encounters to those in which "a reasonable person would feel free 'to disregard the police and go about his business.' "  Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)); accord Florida v. Royer, 460 U.S. 491, 497-98 (1983) (plurality opinion).  In the present case, Reittinger had been stopped in a rural area in the nighttime.  He was in the presence of two armed deputies, one on each side of the vehicle.  Deputy Bolen asked Reittinger to waive his Fourth Amendment right and consent to a search of the vehicle.  When Reittinger did not respond, the deputy asked a second and then third time for consent to search.  These requests for permission to search were made even though Deputy Bolen admitted that he "had no reasonable and articulable suspicion of criminal activity on the part of [Reittinger]."

Although Deputy Bolen had told Reittinger that he was free to go, we think that the events that transpired immediately thereafter would suggest to a reasonable person that just the opposite was the case.  We do not think that a reasonable person, under the circumstances, would have considered that he was free to disregard the deputies and simply drive away.  Therefore, we conclude, from our de novo review of the facts, that Reittinger was unlawfully seized in violation of his Fourth Amendment rights; that the trial court, though correct about the seizure, erred in refusing to suppress the product of the unlawful seizure and search of Reittinger; and that the Court of Appeals erred in affirming the trial court's judgment."
 
 
The Meaning of Custody

Davis v. Commonwealth, 45 Va. App. 12, 608 S.E.2d 482 (2005)

"Recently, in White v. Commonwealth, 267 Va. 96, 591 S.E.2d 662 (2004), the Supreme  Court addressed the issue of whether a defendant was in "custody" within the meaning of this  statute. In finding the evidence insufficient to sustain White's conviction, the court emphasized  the necessity of immediate control: "[I]t is clear that for purposes of prohibiting an escape under  Code 18.2-479, the General Assembly must have intended that the term 'custody' would  include a degree of physical control or restraint under circumstances other than those also  necessary to constitute an actual custodial arrest." Id. at 104, 591 S.E.2d at 667 (emphasis  added) (footnote added). While noting that a "formal arrest" is not a prerequisite to being in  custody, the court emphasized that an individual's "freedom of movement" must be curtailed.  Id. at 104, 105, 591 S.E.2d at 667, 668.

Appellant in the instant case had been released from the trial court pending sentence and allowed to remain free on bond. At that point he was no longer in the physical custody or even  presence of the court. Thus, the "sufficient restraint to have physical control over him" did not  presently exist. See id. at 106, 591 S.E.2d at 668. At best, he had a future appearance  requirement. Additionally, he failed to appear at the jail, and thus he never submitted to the  court's directive or authority. "
 

Common Law and Arrest

Bristol v. Commonwealth, 47 Va. App. 584, 603, 625 S.E.2d 676, 685 (2006 En Banc) Overruled in Bristol v. Commonwealth, _ Va. __ S.E.2d _, __ (2006). but cited soley for the Common Law citation on Arrest.

"With a few statutory exceptions, . . . the common law relating to arrest is the law on that subject in Virginia." Galliher v. Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736 (1933). An arrest requires "'an assertion of authority and purpose to arrest followed by submission of the arrestee.'" California v. Hodari D., 499 U.S. 621, 626 (1991) (emphasis added) (quoting Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940)). Applying these principles, we have previously held that "[t]he immediate physical ability to arrest, without more, was not sufficient to effectuate an arrest." Cavell v. Commonwealth, 28 Va. App. 484, 486, 506 S.E.2d 552, 553 (1998) (en banc). See also Howard v. Commonwealth, 210 Va. 674, 677, 173 S.E.2d 829, 832 (1970) ("Ordinarily, an arrest is made by the actual restraint of the person of the defendant or by his submission to the custody of an officer."). "At common law, four requisites are involved in arrest: (1) A purpose to take the person into custody, (2) under real or pretended authority, (3) resulting in actual or constructive seizure or detention of his person, (4) so understood by the arrestee." Perkins, supra at 208. The person to be arrested is entitled to know of "(1) the intention to take him into the custody of the law, (2) the authority for the arrest, and (3) the reason therefor." Id. at 249. Thus, at common law, mere words do not constitute an arrest. Cavell, 28 Va. App. at 487, 506 S.E.2d at 553. Although Officer Doyle testified that he orally told Bristol he was under arrest, that did not suffice to constitute an arrest. Id. The record proves that neither Officer Doyle nor Officer Eberts took actions to actually arrest Bristol or to objectively manifest an arrest. Moreover, their actions do not suggest that their purpose was to arrest Bristol or that Bristol was ever in fact taken into custody. Indeed, when Officer Doyle left the hospital, he did not even inform Officer Eberts, his supervising officer, that he had "arrested" Bristol. The report he later prepared at the police station does not mention an arrest. "

Commonwealth v. Hill 264 Va. 541, 546, 570 S.E.2d 805, 808 (2002)   Common Law Right to Resist Unlawful Arrest
 

 "We first observe that the trial court held that Officer  Fromme acted illegally when he detained Hill based on an  anonymous tip.  The Commonwealth did not challenge this ruling either in the trial court or in the Court of Appeals.  Therefore, we do not consider that issue and restrict our analysis to the question whether the common law right to use reasonable force to resist an illegal arrest is applicable to the use of such force to resist an illegal detention...We conclude that the law of this Commonwealth, including the common law of England incorporated into our Code by § 1-10, does not provide a basis for recognizing a common law right to use force to resist an illegal detention.  In the absence of authority requiring such a right, we perceive no reason for enlarging, by judicial decision, the scope of the common law on this subject. Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest...Because a detention is, by its nature, a brief intrusion on  an individual's liberty, the provocation resulting from an illegal detention is far less significant than the provocation that attends an illegal arrest.  Thus, recognition of a right to resist an unlawful detention would not advance the rationale supporting the common law right to use reasonable force to resist an unlawful arrest, but would only serve to increase the danger of violence inherent in such detentions...Accordingly, we hold that a person in this Commonwealth does not have the right to use force to resist an unlawful detention or "pat down" search.  Thus, in the present case, Hill did not have the right to use force to resist the challenged detention and "pat down" search by Officer Fromme, and the Court of Appeals erred in reaching a contrary conclusion."  See Also: Kiana Brown v. Commonwealth, Va. App. (2005 unpublished) (Right to Resist Excessive Force) ,  Victoria Brown v. Commonwealth. Va. App. (1998).

Jerald Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004).

"Unlike the informant in Adams, the caller in this case was not known to the police nor did he or she personally appear before an officer.  Thus, the informant was not subjecting himself or herself to possible arrest if the information provided to the dispatcher proved false.  See Code §18.2-461.  In other words, the informant was not placing his or her credibility at risk and could "lie with  impunity.... Moreover, the Supreme Court rejected any suggestion that a report of illegal conduct justifies a stop and frisk: "[t]he mere fact that a tip, if true, would describe illegal activity does not mean that  the police may make a Terry stop without meeting the  reliability requirement."  529 U.S. at 273 n. The Court made no distinction between concealed criminal conduct and open, obvious criminal activity.... Finally, with regard to the Court of Appeals' reliance  on the imminent danger to the public, the Supreme Court  declined to carve out a "firearm exception" to its  established reliability requirements for anonymous tips.   J. L. 529 U.S. at 272. The Court stated that "an automatic  firearm exception . . . would rove too far" because it  "would enable any person seeking to harass another to set  in motion an intrusive, embarrassing police search of the  targeted person simply by placing an anonymous call falsely  reporting the target's unlawful carriage of a gun."  Id. . . . Under the totality of the circumstances presented  here, the anonymous tip lacked sufficient indicia of  reliability to justify the investigatory stop of the vehicle in which Jackson was a passenger.  Thus, the stop was illegal as well as the subsequent search of Jackson's person."

See Also: Williams v. Commonwealth, Va. App. (2005 Unpublished)

Sattler v. Commonwealth, 20 Va. App. 366, 457 S.E.2d 398 (1995).
 
 

"In Stanley, we held that it was unreasonable for police officers to conclude that a person on a motor scooter was armed and dangerous because a police officer saw a bulge in the person's pocket following a traffic stop.  16 Va. App. at 877, 433 S.E.2d at 515.

The evidence at the suppression hearing failed to prove that the officer had specific and articulable facts upon which to conclude that Sattler was armed and dangerous.  The officer initially detained Sattler solely for the purpose of issuing a summons for a traffic infraction.  Sattler was not under arrest.  The officer offered no reason to support a belief that Sattler was armed or dangerous or that he possessed illegal drugs.

The officer searched Sattler solely because of his general policy of searching every person entering his vehicle.  In every encounter, "Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted."  Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990).  The officer's generalized policy of frisking all persons does not satisfy the restrictions imposed by Terry.  "Indeed, if everyone is assumed to be armed and dangerous until the officer is satisfied that he or she is not, then officers would be able to frisk at will -- a result not contemplated by the Fourth Amendment."  State v. Garland, 636 A.2d 541, 548 (N.J. Super. Ct. App. Div. 1994).

Accordingly, we hold that the trial judge erred in finding that the officer's search was reasonable and in refusing to suppress the seized evidence."

Finding of Gun on One Group Member Allows Searching of all Members of the Group

El-Amin v. Commonwealth, 269 Va. 15, 20, 607 S.E.2d 115, 117 (2005)

"The circumstances in this case support the officer's objectively reasonable apprehension that, upon discovery of a weapon on the person of one member of the group, the other members of the group might also be armed and dangerous. In reaching this conclusion, we are careful to dispel any implication that El-Amin's companionship status alone was  sufficient to authorize a pat down search or that an officer's generalized concern for his safety alone would validate such a search under the Fourth Amendment. The totality of the facts in this case - place, time, discovery of a weapon, and group activity - validates the pat down search under the principles utilized by the Supreme Court when considering Fourth Amendment challenges to searches and seizures. For the reasons stated, the pat down search of El-Amin  following discovery of a weapon on his companion did not  violate El-Amin's Fourth Amendment rights. Therefore, the trial court did not err in refusing to suppress the evidence  found as a result of the pat-down search, and we will affirm  his convictions. Affirmed."

Taking of One's Identification by Officer Constitutes Unlawful Seizure

Piggot v. Commonwealth, 34 Va. App. 45, 49, 537 S.E.2d 618, 619 (2000).

"The "principle embodied by the phrase 'free to leave' means the ability to ignore the police and to walk away from them," to "'feel free to decline the officers' requests or otherwise terminate the encounter.'" United States v. Wilson, 953 F.2d 116, 122 (4th Cir. 1991) (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). "Fourth Amendment scrutiny is triggered, however, the moment an encounter 'loses its consensual nature.'" Id. (quoting Bostick, 501 U.S. at 434).

Detective Langford's request for Piggott's identification initiated a consensual encounter and implicated no Fourth Amendment interest. However, the consensual aspect of the encounter ceased when Detective Langford retained Piggott's identification while he ran a warrant check. A reasonable person in Piggott's circumstances would not have believed that he could terminate the encounter and walk away. By retaining Piggott's identification, Detective Langford implicitly commanded Piggott to stay. See Hodnett v. Commonwealth, 32 Va.App. 684, 691-92, 530 S.E.2d 433, 436 (2000). Thus, for Fourth Amendment purposes, Piggott was then "seized" by Detective Langford. See Terry v. Ohio, 392 U.S. 1, 16 (1968). "In order to justify such a seizure, an officer must have a 'reasonable and articulable suspicion of criminal activity on the part of the defendant.'" Hatcher v. Commonwealth, 14 Va. App. 487, 490, 419 S.E.2d 256, 258 (1992) (quoting Commonwealth v. Holloway, 9 Va. App. 11, 15, 384 S.E.2d 99, 101 (1989)).

The circumstances in this case gave Detective Langford no objectively reasonable basis for suspecting that Piggott was engaged in criminal activity. Detective Langford had no information to such effect, nor had he observed any criminal behavior. Piggott cooperated and willingly gave his correct identification.

Because Detective Langford's encounter with Piggott ceased to be consensual, and because the circumstances provided no lawful basis for further detention, Piggott was seized in violation of his Fourth Amendment rights."

See Also: Oregon v. Thompkin (2006)

Miscellaneous

"However, "a belief based on a mistaken understanding of the law cannot constitute the reasonable suspicion required for a constitutional traffic stop." United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000); see also United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) ("[F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable."); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003) (holding that a mistake of law cannot provide the "objectively reasonable grounds for reasonable suspicion or probable cause"). "[I]f officers are allowed to stop vehicles based upon their subjective belief that traffic laws have been violated even where no such violation has, in fact, occurred, the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and the costs to privacy rights excessive." United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999)." Commonwealth v. Snyder, Va. App. (2007 Unpublished).

Monetary Damages for Violation of 4th Amendment Rights

§ 19.2-59. Search without warrant prohibited; when search without warrant lawful.

§ 1983. Civil action for deprivation of rights

BIVENS v. SIX UNKNOWN FED. NARCOTICS AGENTS, 403 U.S. 388 (1971)

§ 19.2-71. Who may issue process of arrest.

Qualified Immunity for Unlawful Acts By the Police and Obstruction of Justice

""[O]bstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person's conduct merely renders the officer's task more difficult" or "frustrate[s] [his or her] investigation." Ruckman, 505 S.E.2d at 389, 390....In examining each constituent part of the officers' qualified immunity claim, we do not lose sight of the possible inference from the evidence that Rogers' arrest was motivated by the officers' anger at his "irreverent" refusal to consent to their search. In short, crediting Rogers' version of disputed factual issues, as we must, it appears that this may not be a case in which police officers acting in good faith made a "bad guess" in a confusing area of the law, but instead, may be a case in which police officers, angered by a homeowner's correct statement of his legal rights and refusal to permit a search which was clearly illegal absent his consent, arrested a homeowner in a fit of pique. The officers now seek to justify their arrest with an implausible reading of cases establishing a simple right to approach a home to speak to the owner without a warrant, assertions that verbal objection to an illegal search is an independently arrestable offense, and claims that a suspect was intoxicated in public when it is disputed whether he was intoxicated and the clear evidence indicates that he was not in public. The police do not have a right to arrest citizens for refusing to consent to an illegal search. The decision of the district court is therefore affirmed."  Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001).

  § 18.2-460 Obstruction Of Justice

Ruckman v. Com., 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998).

Op. Va. Att'y Gen. 02-082 (2002)

"Law-enforcement officer conducting lawful stop to investigate alleged criminal activity may not arrest for obstruction of justice suspect who refuses to identify himself to officer. Depending on circumstances, suspect may be detained for purpose of determining his identity."

The Right to Resist an Unlawful Arrest or the use of Excessive Force

 "The court fully protected the rights of the accused on this point by instructions Nos. 34 and 41, which told the jury, in substance, that when an officer attempts to arrest a person charged with a felony and uses more force than is reasonably necessary to make the arrest, the officer himself becomes the wrongdoer and the person whose arrest is sought, if himself without fault, can resist such excessive force and even kill the officer if necessary to preserve  his own life." Palmer v. Commonwealth 143 Va. 592, 130 S.E. 398 (1925).

Commonwealth v. Hill 264 Va. 541, 546, 570 S.E.2d 805, 808 (2002)   Common Law Right to Resist Unlawful Arrest
 

 "We first observe that the trial court held that Officer  Fromme acted illegally when he detained Hill based on an  anonymous tip.  The Commonwealth did not challenge this ruling either in the trial court or in the Court of Appeals.  Therefore, we do not consider that issue and restrict our analysis to the question whether the common law right to use reasonable force to resist an illegal arrest is applicable to the use of such force to resist an illegal detention...We conclude that the law of this Commonwealth, including the common law of England incorporated into our Code by § 1-10, does not provide a basis for recognizing a common law right to use force to resist an illegal detention.  In the absence of authority requiring such a right, we perceive no reason for enlarging, by judicial decision, the scope of the common law on this subject. Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest...Because a detention is, by its nature, a brief intrusion on  an individual's liberty, the provocation resulting from an illegal detention is far less significant than the provocation that attends an illegal arrest.  Thus, recognition of a right to resist an unlawful detention would not advance the rationale supporting the common law right to use reasonable force to resist an unlawful arrest, but would only serve to increase the danger of violence inherent in such detentions...Accordingly, we hold that a person in this Commonwealth does not have the right to use force to resist an unlawful detention or "pat down" search.  Thus, in the present case, Hill did not have the right to use force to resist the challenged detention and "pat down" search by Officer Fromme, and the Court of Appeals erred in reaching a contrary conclusion."  See Also: Kiana Brown v. Commonwealth, Va. App. (2005 unpublished) (Right to Resist Excessive Force) ,  Victoria Brown v. Commonwealth. Va. App. (1998).

JOHN BAD ELK v. U S, 177 U.S. 529 (1900).

" Instead of saying that plaintiff in error had the right to use such force as was absolutely necessary to resist an attempted illegal arrest, the jury were informed that the policemen had the right to use all necessary force to arrest him, and that he had no right to resist. He, of course, had no right to unnecessarily injure, much less to kill, his assailant; but where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.

The plaintiff in error was undoubtedly prejudiced by this error in the charge, and the judgment of the court below must therefore be reversed, and the case remanded with instructions to grant a new trial." JOHN BAD ELK v. U S, 177 U.S. 529 (1900).

" An arrest is not unlawful within the common law right to resist, if the arrest is authorized by statute or by legal process facially good, even though the statute may later be declared unconstitutional, or the legal process found defective." Wright v. Bailey 544 F.2d 737 (1976).

Hemmens, Craig: Resisting Unlawful Arrest in Mississippi: Resisting the Modern Trend, 2 Cal. Crim. L. Rev. 2. (2000).

"That the good People of Virginia took up Arms, in the present Contest with Great Britain, in Defence of their Liberty and Property, invaded by an arbitrary & tyrannical Government; that as it is not merely for Names, but our essential Rights we are contending, the same Principles which first induced us to draw the Sword will again dictate Resistance to Injustice & Oppression, in whatever Shape, or under whatever Pretence, it may be offered."  George Mason, 1781. Rutland, The Papers of George Mason, Vol II, p700-711, (1971).

Constitution of Virginia

Article 1, Section 11. Due process of law; obligation of contracts; taking of private property; prohibited discrimination; jury trial in civil cases.

That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term "public uses" to be defined by the General Assembly; and that the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination.
 
 

United States Constitution
 

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
 

Amendment XIV
 

XIV - Citizen rights not to be abridged

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368-69 (2005)

"the fact that the governing majority in a State has traditionally  viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

Lawrence v. Commonwealth, Va. App. (2002 Unpublished).
 

"No person shall be . . . deprived of life, liberty, or  property, without due process of law."  U.S. Const. amend V.;  Va. Const. art. 1, § 11.  "In general, due process requires that  individuals have notice of those acts which may lead to a loss  of liberty."  Holden v. Commonwealth, 27 Va. App. 38, 45, 497  S.E.2d 492, 495 (1998)

See Also: Marks v. United States, 430 U.S. 188, 191 (1977)."

"[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id., at 353-354. Similarly, in Rabe v. Washington,  405 U.S. 313  (1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied. Citing  Marks v. United States, 430 U.S. 188 (1977). "

Allen v. Commonwealth, Va. App. (2001).
 

"In Blackledge, the defendant was tried and convicted in a North Carolina district court for the misdemeanor charge of assault with a deadly weapon.  Upon his appeal to the superior court, where he had a right to a trial de novo, the prosecutor  obtained an indictment charging him with the felony offense of  assault with the intent to kill and inflict serious bodily  injury.  The Supreme Court of the United States held: A prosecutor clearly has a considerable  stake in discouraging convicted  misdemeanants from appealing and thus  obtaining a trial de novo in the Superior  Court, since such an appeal will clearly  require increased expenditures of  prosecutorial resources before the  defendant's conviction becomes final, and  may even result in a formerly convicted  defendant's going free.  And, if the  prosecutor has the means readily at hand to discourage such appeals - by "upping the ante" through a felony indictment whenever a  convicted misdemeanant pursues his statutory  appellate remedy - the State can insure that  only the most hardy defendants will brave the hazards of a de novo trial.

A person convicted of an offense is entitled  to pursue his statutory right to a trial de  novo, without apprehension that the State  will retaliate by substituting a more  serious charge for the original one, thus  subjecting him to a significantly increased potential period of incarceration.

We hold, therefore, that it was not  constitutionally permissible for the State  to respond to [the defendant's] invocation  of his statutory right to appeal by bringing  a more serious charge against him prior to  the trial de novo.    Blackledge, 417 U.S. at 27-29 (footnotes omitted)."

Constitution of Virginia

Article 1, Section 8.   Criminal prosecutions.  That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be  confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a  speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found  guilty.  He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, nor be  compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same  offense.  Laws may be enacted providing for the trial of offenses not felonious by a court not of record without a jury,  preserving the right of the accused to an appeal to and a trial by jury in some court of record having original  criminal jurisdiction.  Laws may also provide for juries consisting of less than twelve, but not less than five, for the  trial of offenses not felonious, and may classify such cases, and prescribe the number of jurors for each class.  In criminal cases, the accused may plead guilty.  If the accused plead not guilty, he may, with his consent and  the concurrence of the Commonwealth's Attorney and of the court entered of record, be tried by a smaller number of  jurors, or waive a jury.  In case of such waiver or plea of guilty, the court shall try the case.  The provisions of this section shall be self-executing.
 

United States Constitution
 

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
 

Ferguson v. Commonwealth, ___, Va. App. __ , SE.2d __ (2007).

"Here, as in Hines, Investigator Hagerman and Chief Marr violated appellant's Fifth Amendment rights by continuing to interrogate appellant after he invoked his right to counsel. See McDaniel v. Commonwealth, 30 Va. App. 602, 607, 518 S.E.2d 851, 854 (1999) (en banc) (reversing the trial court's denial of the defendant's suppression motion because "the detective gained [the defendant's] confession by continuing the interrogation after [the defendant] had invoked his Fifth Amendment right to counsel"). Investigator Hagerman told appellant that someone had identified his car leaving the crime scene. Investigator Hagerman said that if appellant did not want to talk to him "about this," that appellant knew that he was "in trouble right now." Investigator Hagerman stated that appellant's "only hope" was to confess, and mentioned appellant's probationer status. Investigator Hagerman questioned whether appellant's alibi would hold up, and inquired as to how he had any money when he was not working at the time. "

Dixon v. Commonwealth, 270 Va. 34, 36, 613 S.E.2d 398, 399 (2005).

"Although Trooper Jackson told Dixon that he was not under arrest, Jackson secured Dixon's hands in handcuffs behind his back and placed him in the front seat of  the locked patrol car. Jackson informed Dixon that he was being detained for investigative and safety considerations. We conclude that under these circumstances, a reasonable person in  Dixon's position would have understood that his freedom was  being restricted to a degree associated with a formal arrest.  See Berkemer, 468 U.S. at 442; Stansbury, 511 U.S. at 322;  Beheler, 463 U.S. at 1125; Burket, 248 Va. at 605, 450 S.E.2d at 129; George, 242 Va. at 272, 411 S.E.2d at 17. Our conclusion in this regard is influenced most strongly  by the combined factors of Dixon being restrained in handcuffs  and being locked in a police patrol car. While the presence of  either of these factors, in the absence of the other, may not  result in a curtailment of freedom ordinarily associated with a formal arrest, the presence of both factors compels the conclusion that a reasonable person subjected to both restraints would conclude that he was in police custody...Accordingly, under the facts and circumstances before us, we hold that Trooper Jackson was required to give Miranda warnings to Dixon before questioning him, and that the circuit court erred in denying Dixon's motion to suppress with regard to the criminal charges pending against him. "

Commonwealth v. Hilliard, 270 Va. 42, 49, 613 S.E.2d. 579, 584 (2005).

 "We consider this exchange in the context of the circumstances and the prior statements made by Hilliard. When  viewed as a whole, the import of Hilliard's statements is clear.  We hold that as a matter of law, Hilliard's third alleged request for an attorney, in context, was an unequivocal request  for counsel stated with sufficient clarity that a reasonable  police officer under the circumstances would have understood the  statements to be a request for counsel. Therefore, at that  point, the detectives were required to cease interrogating  Hilliard. See Davis, 512 U.S. at 458; Edwards, 451 U.S. at 484- 85; Redmond, 264 Va. at 328, 568 S.E.2d at 698. Accordingly, we  hold that the Court of Appeals correctly concluded that the  circuit court erred in denying Hilliard's motion to suppress, because Hilliard's confession was obtained in violation of his  Fifth Amendment rights."

Cullen v. The Commonwealth, Va. (24 Gratt), 624, (1873).

"The right to refuse to answer such questions before any judicial tribunal was the well-settled law of England long before the separation of the American colonies from the mother country; but the State of Virginia, ever foremost in proclaiming principles of personal liberty and security, and providing safeguards to individual rights, was unwilling, when she assumed the attitude of an independent and sovereign State, to leave this great principle and others of kindred character subject, as at common law, to the mutations of legislative will or to the hazard of judicial discretion. She therefore thought proper, as far back as June 12th, 1776, and prior to the declaration of independence, when forming her own State Constitution, to make a solemn declaration of the rights of the good people of Virginia, 'which rights do pertain to them and their posterity as the basis and foundation of government."

Constitution of Virginia

Article 1, Section 8.   Criminal prosecutions.  That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be  confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a  speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found  guilty.  He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, nor be  compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same  offense.  Laws may be enacted providing for the trial of offenses not felonious by a court not of record without a jury,  preserving the right of the accused to an appeal to and a trial by jury in some court of record having original  criminal jurisdiction.  Laws may also provide for juries consisting of less than twelve, but not less than five, for the  trial of offenses not felonious, and may classify such cases, and prescribe the number of jurors for each class.  In criminal cases, the accused may plead guilty.  If the accused plead not guilty, he may, with his consent and  the concurrence of the Commonwealth's Attorney and of the court entered of record, be tried by a smaller number of  jurors, or waive a jury.  In case of such waiver or plea of guilty, the court shall try the case.  The provisions of this section shall be self-executing.
 
 

United States Constitution
 

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Lessor Included Offense

Commonwealth v. Hudgins 269 Va. 602, 605, 611 S.E.2d 362, 364 (2005).

"[T]he double jeopardy clauses of the United States and the Virginia constitutions (U.S. Const., amend. V, and Va. Const., art. I, § 8, respectively) embody three guarantees. They  protect against (1) a second prosecution for the same offense  after acquittal, (2) a prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.  Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797  (1981) (citing North Carolina v. Pearce, 395 U.S. 711, 717  (1969), and Illinois v. Vitale, 447 U.S. 410, 415 (1980)).

Two offenses will be considered the same when (1) the two offenses are identical, (2) the former offense is lesser included in the subsequent offense, or (3) the subsequent  offense is lesser included in the former offense. Martin v.  Commonwealth, 221 Va. 720, 722, 273 S.E.2d 778, 780 (1981);  see also Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660, cert. denied, 435 U.S. 909, 439 U.S. 892 (1978). ...

We note that, in its opinion, the Court of Appeals based its conclusion that grand larceny from the person is a lesser-included offense of robbery in part upon a statement in Jones, supra, that "grand larceny is a lesser-included offense of robbery only when it is the theft expressly charged in the robbery indictment." 218 Va. at 759, 240 S.E.2d at 660. As the Commonwealth points out, however, this statement was dicta because the larceny and