Warrantless searches are ripe for attack, says Fairfax criminal lawyer

Warrantless searches (WS’s) of people are so commonplace that it is important to underline that probable cause alone does not justify a warrantless search of the person’s body and clothing without an accompanying arrest. As a Fairfax criminal lawyer, I read with satisfaction this week’s Virginia Court of Appeals opinion that confirms the same. Parady v. Commonwealth of Virginia, ___ Va. App. ___ (July 5, 2023). This is not cause for raucous celebration for Virginia criminal defendants’ rights, seeing that search warrants are routinely granted by Virginia court magistrates and judges. Nonetheless, hats off to Renee Parady’s appellate lawyer for pulling off such a successful appellate result in this unanimous appellate reversal of the legality of the search of Parady that found a hard case and led her to hand over the same on the police officer’s orders, which then found suspected illegal drugs therein.

Your Virginia criminal defense lawyer needs to analyze police warrantless searches with a fresh eye

So many players in the Virginia criminal justice system — trial judges, criminal defense lawyers, prosecutors / assistant commonwealth’s attorneys, and police / law enforcement officers (LEO) — are so accustomed to appellate court cases authorizing warrantless searches of people’s bodies and clothing in the presence of probable cause to believe that the person possesses contraband, that it is vital for all of them to read Parady to dispel the notion that such a warrantless search is automatically permitted. Instead, the following analysis must be included: The caselaw generally allows a warrantless search of the body and clothing of a person arrested with probable cause to believe the arrestee has committed a crime. However, where, as in Parady, an arrest was absent, a key question is whether delaying such a search without an arrest, to obtain a search warrant will disturb the status quo of the presence of any contraband. Here, the trial judge found that the status quo would not have been disturbed, but still allowed the search. Parady says no; a search warrant was needed.

A positive drug dog alert does not automatically allow WS’s of non-arrested automobile occupants

As a Fairfax criminal lawyer, I remind you to know that if you associate in person with people possessing contraband, you risk getting caught not only in a dragnet arrest once that contraband is found, but also to be prosecuted for the same and to go through the anxiety of not knowing whether you will be convicted or not. Here, Parady was the passenger in a lawfully stopped vehicle. While the police were processing the arrest of another occupant with an open arrest warrant, a drug sniffing dog arrived and alerted to the presence of controlled substance(s) / drug(s). Parady shows that this alone did not permit the warrantless search of Parady.

A police informant’s claim of drugs hidden in the suspect’s genitals does not automatically allow WS’s

Parady also is noteworthy in that a third occupant of Parady’s car was a police informant known to have previously provided reliable information. When one of the police officers asked the informant why the dog would have alerted to drugs, he replied that “it” was in Parady’s genitals. (He used a more vulgar word for the same.) Even assuming for argument’s sake the reliability of such an informant’s claim, that still did not remove the need for a search warrant in Parady.  Parady. Warrantless searches by police in Virginia must always be challenged by your Virginia criminal lawyer.

Fairfax criminal lawyer Jonathan Katz knows that persuasion in pursuit of Virginia criminal defense victory springs both from internalizing and articulating the relevant law and evidence; and breathing persuasive life into the most defense-friendly story of the case as possible. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.