Virginia public safety exception- Fairfax criminal lawyer says the Virginia Court of Appeals has gone too far

Virginia public safety exception caselaw gives police a certain extent of leeway to question detained criminal suspects without first reading them their rights under Miranda v. Arizona, 384 U.S. 436 (1966), to remain silent and to a lawyer. As a Fairfax criminal lawyer, I believe that the Virginia Court of Appeals (fortunately its ruling is non-binding, being an unpublished opinion) went too far in letting the public safety exception save prosecutors from a retrial against a murder defendant who spilled the beans about his crime without any Miranda warnings. As gruesomely coldblooded was the murder recounted against Charles Leroy Holman, all of our rights with the police and in criminal court are at risk if the Virginia courts allow such a Miranda-weakening state of affairs to continue. Holman v. Commonwealth of Virginia, Record No. 0830-21-3 (Va. App., July 12, 2022) (unpublished). In total, Holman was convicted by jury for first-degree murder under Virginia Code § 18.2-32, aggravated malicious wounding under Va. Code § 18.2-51.2, abduction by force under Va. Code § 18.2-47, armed burglary with intent to commit a felony under Va. Code § 18.2-89, unauthorized use of a vehicle under § 18.2-102, and three counts of using a firearm during the commission of a felony, under § 18.2-53.1.

The inhumanity of a crime is not permitted to be an exception to a Virginia criminal defendant’s Constitutional rights

Virginia public safety exceptions must be applied in a limited fashion if the Constitution’s Bill of Rights are going to have meaning for all of us. The details of Holman’s convicted murder are so blood curdling as to have challenged his jury’s ability to maintain its oath. Fortunately, no Virginia nor governing federal appellate opinions give the greenlight for the brutality of an alleged crime to give the defendant less Constitutional protection than for a person whose alleged crime was less serious. With that backdrop, Holman recounts that Holman kidnapped his ex-girlfriend’s former co-worker to lure out his ex. When Holman spotted his ex driving to the former coworker’s destination, Holman rammed into his ex-girlfriend’s car repeatedly until it flipped over into an embankment.  Holman went over to his ex-girlfriend’s car with a rifle, proclaimed ‘You just remember this is from me,- and fired a single fatal shot into her chest. Holman. Such depravity causes even a veteran criminal defense lawyer pause about the depths of such inhumanity. At the same time, the best criminal defense lawyers will not allow such concerns to prevent them from pursuing the best defense even for a defendant named Charles Leroy Holman.

Give police an inch with the Virginia public safety exception, and risk them taking a mile

The Holman public safety exception case is staggering for declining to bar his un-Mirandized damning answers to the following questions, all due to the expressed public safety exception to Miranda. After asking the common police pre-search incident to arrest question about whether the arrestee has anything in his pockets that might poke, stick or injure the police officer (for instance a knife or other blade, or syringe), police questions to Holman included: “Where’s Christina [Holman’s ex-girlfriend whom he murdered] at now? Christina’s in the car… You shot her with the gun that’s in your car? I shot her with the [unintelligible]. Why’d you do that? Just get me out of here.” Holman. No public safety purpose was served here unless they were calculated to find Holman’s weapon in order that it not fall into the wrong hands. I look forward to seeing Holman’s conviction reversed by en banc review or appeal. Holman proclaims that “’nothing in [New York v.] Quarles [, 467 U.S. 649 (1985)] limits the application of the public safety exception to questions about the location of a missing weapon.’” Anderson v. Commonwealth, 279 Va. 85, 92 (2010).” Holman. Clearly, asking Holman, un-Mirandized, “You shot her with the gun that’s in your car” did not serve public safety rather than serving prosecution, which purpose required Miranda warnings to Holman. Holman’s giving this much leeway to police only serves to encourage police, at best, to test the limits of Miranda.

Must I answer police questions?

Whether or not the Virginia public safety exception applies in a particular instance, everyone has a Fifth Amendment Constitutional right to remain silent with the police, whether or not they have been Mirandized. To not exercise your right to remain silent with police, and your right to refuse searches, risks damaging consequences for you, even if you think you have not committed a crime and/or think you cannot be pinned with a crime. Some people worry that their risk of being arrested and prosecuted increases by displeasing the police. However, by giving up any of your rights with the police, you generally cannot reverse those waivers. It is better to keep your liberty intact in the process of irritating the police, than to do otherwise.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Learn great defensive ideas for your case by calling 703-383-1100 for your free initial confidential consultation with Jon Katz about your court-pending case.