Attenuation trumps earlier Fourth Amendment violations, says Fairfax criminal lawyer

Attenuation can trump earlier Fourth Amendment violations. As a Fairfax criminal lawyer, I read with interest chief Fairfax County Circuit Court Judge Penny Azcarate’s application of such law to deny a Virginia criminal defendant’s challenge to a child pornography-yielding search of a computer and cellphone. Specifically, police  violated Michael Vincent Vaughn’s Fourth Amendment Constitutional rights by opening the unlocked trunk of Vaughn’s van, believing his license plates/ tags to have been stolen, and seized items unlawfully by not having had lawful grounds to impound his vehicle, in addition to not adhering to lawful inventory search procedures that are required for such a search conducted before police lawfully have a vehicle towed away. Once the tow truck driver arrived, the police arranged to smash open the van’s windows. Commonwealth of Virginia v. Vaughn, Fairfax Circuit Court Nos. FE-2023-392 & FE-2023-393. Vaughn then emerged from the van brandishing a rifle at one of the police officers, and another police officer shot and wounded Vaughn in his neck. Police then obtained a judicially issued search warrant for the van, which recovered a computer and cellphone (the cellphone was seized before the warrant was issued, but the warrant authorized searching the phone). Police found child pornography on both devices.

Is it okay for me to use force against an unlawful police search of my property?

Do not expect to avoid an assault on police conviction for using force against a law enforcement officer’s (LEO) unlawful search of your property. Your remedy against unlawful police searches is to file a lawsuit in court, or, if you become a criminal defendant in relation to the search, your Virginia criminal lawyer may also file and argue a motion to suppress evidence, and to argue (when needed) that attenuation is absent or is not of use against you. Fairfax Circuit Court Judge Azcarate was not persuaded that Vaughn’s brandishing of firearm at one of the police officers was anything other than an assault on a police officer, which in Virginia is a felony offense.

Why did a Fairfax judge find that attenuation permitted a search warrant that led to the discovery of child pornography?

Following is Fairfax Judge Azcarate’s analysis confirming that attenuation law allowed the issuance of a search warrant that yielded the discovery of child pornography on Vaughn’s computer and cellphone. First, police seized Vaughn’s cellphone before obtaining a search warrant and his computer after the issuance of the search warrant. Vaughn was not helped as much with any argument about a pre-search warrant seizure of his cellphone so long as his cellphone was going to be inevitably discovered under the search warrant where, as here, Supreme Court caselaw does not permit a warrantless cellphone search without consent (which was absent here), where there is no indication that police started searching his phone before obtaining the search warrant. Second, Vaughn accepts that police were motivated not by misconduct but by a wellness check on the vehicle’s occupant, even if not authorized by law to do so. Third, what Fairfax Judge Azcarate calls Vaughn’s violent rifle brandishing felony, clearly caused attenuate circumstances: “The Defendant’s felonious intervention clearly attenuates and dilutes the taint from the illegal search. which does not absorb into the later recovered evidence at issue.” Vaughn. 

What should I do when the police want to or decide to search me or my property?

When the police ask you to search you or your property, politely and clearly saying no (which is your right under the Constitution’s Fourth Amendment) can provide you critical protection against a Virginia prosecution. Do not provide any physical resistance against the police. If the police say they are going to search you or your property or start doing so wordlessly, again, clearly and politely saying “I decline all searches” may help you later on. Be sure not to use words declining a search that might be misconstrued by police and your judge as doing the opposite. For instance, in the midst of loud traffic or outdoor wind, saying “I do not consent to a search” may come across as “I consent to a search”. Therefore, using short words that will not be misconstrued are ideal, including: “No” to answer a request to conduct a search, and “I decline all searches” in answer to such a request, or in response to a search that is about to start or that is in progress. Let the prosecutor argue attenuation, if applicable; your job is to argue against it.

Is any of this article legal advice? None of this article is legal advice, which can only be obtained through a consultation with a qualified lawyer. Fairfax criminal lawyer Jonathan Katz is single-focused on obtaining the best possible results for you against Virginia DUI, felony and misdemeanor prosecutions. Jon Katz’s razor-sharp focus on your best defense will become clear at the outset of your first meeting with him. Jon can usually meet with you the same day or else the next day after your call us for your free in-person confidential consultation about your court-pending case, at 703-383-1100.