Scour search warrant applications, says Fairfax criminal lawyer

Scour search warrant applications for arguing the absence of probable cause to permit their issuance. As a Fairfax criminal lawyer, I know that winning drug defenses and numerous other defenses often heavily depends on getting the evidence suppressed on Fourth, Fifth or Sixth Amendment Constitutional grounds. Sadly, caselaw is often far from beneficial for the defense, calling all the more for relentless and creative suppression motion and hearing preparation and execution, and full readiness to proceed to trial or else the most favorable possible settlement / plea negotiation in the event that the evidence suppression route does not work. Robert Harrison Flint learned how challenging it can sometimes or usually be to obtain suppression success in Virginia. Flint v. Commonwealth of Virginia, ___ Va. App. ___ (2025).

Fairfax criminal defendants and those prosecuted for alleged Virginia drug and other crimes: Never rely solely on taking the scour search warrants approach to win your case

Fairfax criminal defendants and those accused of drug and other offenses: Make sure that your Virginia criminal defense lawyer proceeds with an effective flowchart for your defense. In that way, if your trial judge leans in favor of any aspect of your attorney’s suppression arguments, your lawyer can mine that avenue. If the judge denies any evidence suppression or other relief, your lawyer can move right on to the next avenue of puruing justice for you. Flint and his lawyer certainly would have been engaging in folly had they relied solely on the scour search warrants approach, did not solely rely on that avenue, having preserved his right to appeal by entering a conditional guilty plea to  possession of ammunition as a convicted felon and possession of cocaine. At first blush, Flint and/or his Virginia criminal defense attorney may have seen many possibilities by the irregularities with his search warrant, including the court file not having a copy thereof, challenging legibility of the police officer’s search warrant affidavit, and the evidence that he had the privilege to hunt on his own land even though his hunting license had been revoked.

Law enforcement went after Flint after receiving photos supporting that he had hunted down a deer with a crossbow

As an important aside, beware having photos haunt you with a prosecution. With Flint, a confidential informant provided police in Virginia with photographs supporting that Flint had hunted down a deer with a crossbow, with the images depicting Flint covered in blood and next to a dead deer in a truck tailgate, holding the deer by the antlers. With police knowing that Flint’s hunting license was revoked, of course law enforcement pursued him. Do not rely on being saved by helpful statutory language. Flint puts no onus on his police officer to have inquired whether his hunting took place on his family’s property before pursuing a search warrant. Specifically, Virginia hunting law provides: “It shall be unlawful to hunt, trap or fish in or on the lands or inland waters of this Commonwealth without first obtaining a license, subject to the exceptions set out in § 29.1-301.” Virginia Code § 29.1-300. The foregoing referenced Virginia Code § 29.1-301 relevantly exempts hunting on family property from needing a hunting license: “No license shall be required of landowners, their spouses, their children and grandchildren and the spouses of such children and grandchildren… to hunt, trap and fish within the boundaries of their own lands…” Id. Your Virginia criminal lawyer can scour the evidence and law for help, but a silver bullet will not always be unearthed. 

Beware of the substantial factfinding deference that appellate judges give to Virginia trial judges

Virginia appellate judges give substantial factfinding deference to trial judges. Here, scour as he might have, even though Flint’s Virginia criminal defense attorney alleged that the affidavit of service provided by the police officer (since the court did not retain the affidavit nor search warrant in a findable place, but the officer had a court date stamp showing the filing of the search warrant with the court) was not legible. The appellate court relied on Flint’s Virginia trial judge’s statement at the suppression hearing that: “The [c]ourt cannot find that the warrant is illegible or not readable, and as a result not subject to challenge by defendant.” Flint. 

Be ready to mount a strong argument and to scour the evidence if you want a Franks hearing challenging the existence of a good faith basis by Virginia police in applying for a search warrant

Flint’s prosecutor admitted that police officer Goff “was mistaken when he wrote [in his Virginia search warrant affidavit] that Flint had lost both his hunting license and privilege. Officer Goff testified that he followed Department procedure when he retrieved only Flint’s criminal record, not the underlying court order. He explained that his duties included ‘investigat[ing] potential hunting violations’ and he believed Flint had lost both his license and privilege to hunt after conducting his search of the Department’s computer system. Officer Goff denied having any malicious intent or trying to purposefully mislead the magistrate in the affidavit.” Even with the foregoing statutory exemption that does not require a hunting license to hunt on one’s family’s land, Flint provides no relief on this prosecution-admitted failure of the polcie officer to scour for whether Flint had simply engaged in lawful hunting on his family’s own property, where his mother testified that he had permission to do so. Had the Virginia Court of Appeals ruled in an opposite manner, that would have encouraged Virginia police to be more careful in being accurate on their search warrant applications.

Fairfax criminal lawyer Jonathan Katz’s approach is to fully scour the relevant evidence and law in pursuing your best defense against Virginia felony, misdemeanor and DUI prosecutions. Jon Katz welcomes speaking with you for a free in-person confidential initial consultation about your court-pending prosecution, by calling 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.