Suppression appeal to Circuit Court is not automatically precluded by res judicata / estoppel grounds

Suppression appeals by Virginia assistant commonwealth’s attorneys / prosecutors are not automatically precluded by res judicata / estoppel grounds. Perez Flores v. Commonwealth of Virginia, ___ Va. App. ___ (Oct. 1, 2024). As a Fairfax criminal lawyer, moving to integrate my suppression motion into the trial is one approach I take to avoiding such preclusion with General District Court (GDC) and Juvenile and Domestic Relations District Court (JDR) motions to suppress evidence based on violations of the Constitution’s Bill of Rights. Judges will often so agree when I have District Court trials in Fairfax County court, but not always in other court. By my successfully moving to integrate my evidence suppression motion into the trial, I am causing jeopardy to attach from the time the prosecutor’s first witness starts testifying, where the prosecution cannot succeed in presenting a trial in Circuit Court where jeopardy attached in the District Court.

When the prosecutor moves to enter your case nolle prosequi after the defense wins a District Court suppression motion, pounce with an objection.

In one county neighboring my Fairfax criminal law firm, prosecutors routinely seek to avoid integrating suppression motions into District Court bench trials, and move to enter the case nolle prosequi after the defense wins a District Court suppression motion. (This article addresses District Court suppression victories, because before Perez Flores, the Virginia appellate courts had not seemed to make clear when prosecutors may re-charge defendants after they win a suppression motion in District Court. Virginia caselaw on prosecutorial leave to appeal suppression in Circuit Court proceedings is sufficiently detailed to be suitable for a separate article.) That is the time for the Virginia criminal defense lawyer to pounce with an objection to a nolle prosequi, both by arguing that good cause has not been shown for issuing a nolle, and by arguing that judicial discretion applies to granting or denying such a motion, and explaining why judicial discretion merits denying the motion. Correctly stated, we are not talking about suppression appeals when prosecutors re-prosecute suppressed cases in Circuit Court, as much as prosecutors recharging the Virginia criminal defendant in Circuit Court after suppression is granted at the District Court level.

What does the Virginia Court of Appeals say about res judicata / estoppel and prosecutorial suppression appeals

Whenever a prosecutor successfully obtains a nolle prosequi and recharges a prosecution in Circuit Court after losing in District Court on suppression, the defense needs to seek and argue any good faith basis for saying that jeopardy already attached when evidence was presented in Virginia District Court concerning suppression, and that res judicata / collateral estoppel / issue preclusion law and principles preclude such suppression appeals to Circuit Court. In Perez Flores, the defendant successfully convinced the District Court judge that the police stop of the defendant for having no taillights displayed, was not legal grounds to stop the defendant. (NOTE: Virginia’s enacted legislation from around 2020 barring police stops solely for such traffic violations as tinted windows, dangling rearview mirror objects and insufficiently illuminated license plates, does not apply to traffic stops for having no illuminated rear automobile lights.) Perez Flores says this about res judicata in this context: “Res judicata precludes relitigation of a claim or issue once a final determination on the merits has been reached by a court of competent jurisdiction.’ …  We apply res judicata to a pretrial dismissal of a criminal charge when that dismissal constitutes a decision “on the merits.’ The party asserting res judicata bears the burden of proof by a preponderance of the evidence… We review the circuit court’s legal conclusions de novo.” Perez Flores. 

Beware going to a Virginia District Court trial without a court reporter

How does a Virginia criminal defendant preserve double jeopardy and res judicata / estoppel issues with suppression appeals to Circuit Court without having recorded the District Court proceedings with a court reporter? That can get messy. One thing is for certain, which is that Virginia District Courts are courts not of record, meaning that said courts do not equip themselves with recordation devices nor stenographers to record proceedings. Good court reporters can easily bill a minimum of $300 to appear in court (which does not cover transcription costs), and that investment is fully worth it when proceeding to trial in District Court in Virginia.

Virginia criminal lawyer Jonathan Katz always endeavors to leave no essential stone unturned in your defense against felony. misdemeanor and DUI prosecutions. Bring Jon Katz to your side when prosecuted for drug, DWI, assault, theft, sex, and other alleged offenses. Secure your free, confidential in-person initial consultation with Jon Katz about your court-pending prosecution, by contacting us at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7268.