Criminal Defense
When is offsite criminal activity sufficient to permit a warrant to search one’s home?
Bill of Rights. (From the public domain.) Search warrants of people’s homes often are issued as a result of alleged criminal activity that takes place far from the suspect’s home. When is alleged offsite criminal activity sufficient to permit a warrant to search one’s home? In such...
More on Padilla
Following up on my earlier post today on Padilla, I sent the following to a few local criminal defense listservs: Yesterday’s Padilla decision is destined to change the landscape for the better of how criminal defense lawyers and judges address immigration issues. Here are a...
Challenging NCIC Information can be a Matter of Life or Death
Prosecutors commonly obtain National Crime Information Center (“NCIC”) reports of defendants’ criminal records. A colleague recently pointed out the unfairness of judges rejecting attacks on NCIC reports, because he asserts that the FBI, which runs the NCIC, disclaims responsibility for accuracy in NCIC reports. Certainly,...
Scrutinize confidential informants with a fine-toothed comb
Read enough search warrant applications, and "CI" (confidential informant) will rear its head again and again. Praised be Virginia’s Court of Appeals (albeit by only 2-1) for reversing a conviction that resulted from a so-called reliable confidential informant’s tip that the defendant was about to...
The federal sentencing guidelines may not bind judges
Today, the Fourth Circuit revisited Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551 U.S. 338 (2007), in ordering a resentencing where a sentencing judge "stated that while it did not agree with the Guidelines range, it was ‘obligated’ to give...
Putting a shelf life on Miranda rights
How many Supreme Court justices have been interrogated by police? Probably none. How many have asserted their Miranda rights with the police, only to have the police repeatedly come back to them seeking a reversal of the waiver? Probably fewer. How many of them agree...
Summary contempt proceedings are only available where the judge witnesses the contempt firsthand
Many make much fanfare about the United States criminal justice system’s right for criminal defendants to remain silent, to have a trial, to be presumed innocent unless and until found guilty beyond a reasonable doubt, and the right to counsel. However, the courts where I...
Use Brady as a shield and sword
Last August, I wrote about Brady v. Maryland, 373 U.S. 83 (1963). In its key holding, Brady proclaims: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to...
“Swear words” are not sufficient by themselves to get a conviction
Recently, Virginia’s Court of Appeals confirmed that so-called "swear words" are insufficient by themselves to convict for obscene or profane language. In Lofgren v. Virginia, ___ Va. App. ___ (Nov. 3, 2009), the Court reversed Lofgren’s conviction for a phone call in which he let loose...
Jan 2010 Recent Virginia Supreme Court Opinions
Following are some particularly important recent Virginia Supreme Court opinions: Logan v. Virginia, ___ Va. ___ (Jan. 15, 2010): The “exclusionary rule is not applicable in probation revocation proceedings absent a showing of bad faith on the part of the police.” Jones v. Virginia, ___...