CRIMINAL LAW

 

TEXT: CRIMINAL LAW AND PROCEDURE (Daniel Hall) - Lawyers COOP

 

CHAPTER 1: INTRODUCTION TO THE LEGAL SYSTEM OF THE UNITED STATES

 

1. Federal and state crimes

 

Federalism

 

The division of power between the federal and the state governments.

 

When the two conflict, the federal will prevail (the Supremacy Clause - Article VI)

 

In some areas, there is only federal law (ie. national currency)

 

Most crimes are primarily only under state law (ie. Murder)

 

And there is concurrent jurisdiction over some crimes (ie. Drugs, kidnaping).

 

The 14th amendment=s due process clause (no state shall deprive a person of life, liberty or property without due process of law) gives the federal government power over the states in criminal procedural matters).

 

This includes the power to find state law unconstitutional (one of the checks and balances). - Marbury v. Madison, 1803

 

2. Different goals of criminal and civil law

 

Criminal law is designed to punish and deter.

Civil law is designed to compensate the victim.

 

The state (or United States) is the plaintiff in a criminal case.

The victim is the plaintiff in a civil case.

 

The level of proof differs (proof beyond a reasonable doubt/preponderance of the evidence.

 

The prosecutor in a criminal case has discretion on whether to bring it or not.

 

Actual damage must be shown in civil cases.

 

CHAPTER 2 - INTRODUCTION TO CRIMINAL LAW

 

3. Criminal law compared with criminal procedure

 

Criminal law deals with substantive law (elements of crime, parties, defenses)

 

Criminal procedure deals with arrest, search and seizure, trial and appeal.

 

Criminal procedure is constantly trying to balance the police power with civil rights.

 

4. Purposes of punishment

 

Deterrence: to deter both the defendant and others from criminal activity.

 

Incapacitation: to remove the violator from society

 

Rehabilitation: the most laudable goal

 

Retribution: society being paid back - still a legitimate goal.

 

5. Classes of felonies and misdemeanors

 

Virginia penalties

 

Felonies (18.2-10)

 

Class I: Death or 20-life + up to $100,000

Class II: 20-life + up to $100,000

Class III: 5-20 + up to $100,000

Class IV: 2-10 + up to $100,000

Class V: 1-10 or up to 12 mos. in jail + up to $2500

Class VI: 1-5 or up to 12 mos. in jail + up to $2500

 

Misdemeanors (18.2-11)

 

Class I: 12 mos. in jail + up to $2500

Class II: 6 mos. in jail + up to $1000

Class III: up to $500

Class IV: up to $250

 

Other crimes (such as rape) can have their own particular, designated penalties.

 

6. Sources of criminal law

 

English common law: primarily case law brought over from England with the colonists.

Some principles are still followed today and are incorporated by reference in the code (ie. The

definition of burglary - ages at which a child can be criminally responsible)

 

Constitutional law: sets the framework for the courts and delineates civil liberties and safeguards.

 

Statutory law: virtually all criminal law is not found in codes (which then may adopt or modify the common law - sometimes by reference).

 

Case law: adds judicial interpretation of terms and principles and also tests the constitutionality of statutes

 

CHAPTER 3 - THE TWO ESSENTIAL ELEMENTS OF CRIME

 

7. Mens rea - general v. specific intent

 

Mens rea: Criminal state of mind.  The intent necessary to commit a crime.

 

General intent: the actor simply intends to commit the act - does not include the goal he was seeking - means that his actions were not accidental.

 

Specific intent: the goal or purpose (not motive) is included in the definition

 

8. Scienter

 

The specific background knowledge that must be present to show intent (ie. Knowledge that a person is a police officer before APO can be established.

 

9. Constructive intent - the presumption

 

A person is presumed to intend the natural and probable consequences of his actions.

As it is impossible to look into a person=s mind, this presumption helps prove the necessary intent.  Of course, it can be rebutted.

 

10. Malum in se and malum prohibitum

 

Malum in se: crimes which are evil in themselves - also known as true crimes.

 

Malum prohibitum: crimes only because the law forbids the act (ie. Driving on the right side of the road, rather than the left) -- not inherently bad.

 

11. Transferred intent

 

When the defendant attempts to commit a crime against one person and accidentally commits it against another (or attempts to commit one type of crime and accidentally commits another), the law transfers the intent necessary from the intended to the actual victim.

 

This doctrine does not apply if the type of injury actually inflicted is totally different from the one intended (ie. A throws a baseball at B=s window and accidentally hits C in the head -- A would only be liable in negligence).

 

12. Strict liability crimes

 

Crimes which require no criminal intent at all.

 

Usually minor violations with no incarceration.

 

Although some (ie. Statutory rape) impose liability even if the wrongdoer honestly believes the victim is of age).

 

13. Vicarious liability

 

Situations in which one person is liable for the actions of another.

 

In some jurisdictions (not Virginia), the owner of a car is liable for the negligence of the driver (nor really criminal though).

 

A co-conspirator and those involved in criminal joint ventures can be liable for the actions of his partner which were reasonably forseeable.

 

14. Absolute and rebuttable presumptions in law

 

Absolute presumptions: conclusions that the jury must always reach in given situations

 

Rebuttable presumptions: conclusions that the jury must reach in given situations, but which can be rebutted by sufficient evidence to the contrary.  Absent such evidence, they must be followed - they cannot be ignored by the jury.

 

15. Inferences

 

Conclusions which the jury are permitted to reach from a given set of facts - but which also can be rejected.

 

16. Actus rea

 

The criminal act.

 

The act must result from the criminal intent, not merely be close in time.

 

It must be voluntary. I must intend to physically do what is prohibited.  It cannot be an accident.

 

Liability can be found if one allows himself to enter a situation in which he might involuntarily perform a dangerous act (such as continuing to drive while tired - or driving when subject to epileptic seizures).

 

Thoughts alone will not amount to a crime.

 

A person=s status cannot be declared criminal (such as being a drug addict).

 

17. Possession as an act

 

Some crimes prohibit the possession of illegal items.  Possession of illegal drugs.

 

The act of possession is considered a criminal act.

 

18. Constructive possession

 

A legal theory which holds a person liable for exercising dominion and control over something.  It need not be in close proximity - can be miles away as long as you have control over it - as in something in a safety deposit box.

 

Wynn v. Commonwealth, 5 Va. App. 283 (1987)

 

To support a conviction of constructive possession, the commonwealth must prove that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control.

 

c/a/b: Defendant did not live in the apartment where marijuana was found - he was seen entering only once and remained for a brief period of time - men=s clothes were found there but with no indication that they were his size - an envelope found there indicated that he resided at a different address - his admission that he dated the tenant for three weeks and spent an occasional night there ---- insufficient to establish constructive possession.

 

19. Carrying offenses - contrasted with possession offenses

 

Requires more than the exercise of control - requires that the item be within easy reach

(equivalent to actual possession).

 

Some crimes prohibit the carrying of items in public but do not prohibit possession

(weapons).

 

20. Omissions as an act

 

An omission can be considered an act (and therefore a crime) if there is a duty to act.

 

Some criminal statutes impose a duty to act (ie. Filing a tax return).

 

The existence of a personal relationship can impose a duty to help another (parent-child)

 

This might also include those involved in a joint venture, such as mountain climbing.

 

The existence of a contract can also impose a duty to act (lifeguard).

 

A person can take on the duty to act by assuming it (agreeing to watch another=s child at a pool - or by beginning to go the assistance of someone else).

 

If a person creates a danger to others, he must thereafter do what he reasonably can to limit it.

 

21. Causation - sine qua non

 

Some acts are criminal even if the prohibited result does not occur (ie. Perjury does not require that the jury in fact believe the lie.

 

Other crimes require that a certain result occur.  There must be causation. 

 

Sine qua non: but for the conduct, the result would not have occurred.  This is known as cause in fact.

 

22. Intervening cause

 

An event that comes into play after the wrongdoing and not anticipated by the wrongdoer.  It will remove liability from the wrongdoer.

 

Poor medical treatment will not normally be considered an intervening cause (although gross negligence by a doctor or hospital will be considered intervening.

 

23. Legal cause - forseeability   

 

Legal cause (proximate cause): must also be shown -- even if the act caused the result, there will be criminal liability only if the element of foreseeability is present.

 

24. Concurrent causes

 

If two persons independently act against a third person, and it is impossible to determine which one actually caused the damage, both persons will be held liable. 

 

This would require one to actually produce evidence that he did not cause the damage in order to escape liability.

 

The criminal act must result from the criminal act.  Thus if a person waited in the woods to kill his arch-enemy, and while he was waiting, he accidentally fired his shotgun, killing his enemy, he would not be liable (except maybe in negligence) even though the result he wanted in fact occurred.

 

CHAPTER 4: CRIMES AGAINST THE PERSON

 

25. Homicide

 

The killing of a human being by a human being.

 

Malice - the element that murder contains and manslaughter does not.  It includes the idea of viciousness and hard-heartedness.

 

26. Felony-murder rule

 

The accidental death occurring during the commission of a felony makes the wrongdoer guilty of murder.

 

The malice requirement is met by the idea that intentionally engaging in the commission of a felony is enough.

 

27. BARRK

 

Virginia: the accidental death occurring during the commission of burglary, arson, rape, robbery and kidnaping makes the perpetrator guilty of Murder-I.

 

If it occurs during the commission of any other felony, it is Murder-II.

 

Deaths occurring during the flight from the felony have been found to have occurred during the commission of the felony.

 

This doctrine does not apply if the killing was the independent intentional act of one of the other participants.

 

28. Misdemeanor-manslaughter rule

 

Simply an extension of the felony-murder rule -- makes the accidental death occurring during the commission of a misdemeanor makes the perpetrator guilty of involuntary manslaughter (as long as the misdemeanor was malum in se).

 

Case #1: Haskell v. Commonwealth, 218 Va. 1033 (1978)

 

The appellant and three others attempted to rob a drunken sailor.  They beat him, and the sailor attempted to prevent their escape and was shot and killed by one of the appellant=s partners. He argued that the felony-murder rule should not apply since the attempt to rob had been abandoned before the killing occurred. This argument was rejected.

 

The felony-murder rule applies when the killing is so closely related to the felony in time, place and causal connection as to make it part of the same criminal enterprise.

 

While all four assailants sought to escape from the scene of the attempted robbery without being identified or apprehended, the killing was closely related in time, place and causal connection to the attempted robbery, the two crimes being inextricably interwoven.

 

Case #2: Davis v.Commonwealth, 12 Va. App. 408 (1991) 

 

Defendant was convicted of felony-murder II after accidentally killing someone while driving recklessly after having been declared an habitual offender (which makes it a felony to drive).  This was found proper. He was driving recklessly in order to avoid detection (on the felony of driving after having been declared an habitual offender)

 

The Court added that it was because he was driving recklessly that made the conviction proper.  His reckless driving was calculated to further the felony of driving after having been declared an habitual offender (in order to elude the police).  Had he been driving carefully (even though still a felony), the felony-murder rule would not have applied.

 

Case #3: Wooden v. Commonwealth, 222 Va. 758 (1981)

 

The defendant participated in the armed robbery of an apartment.  She and her co-felons waited for the arrival of their victim so they could rob him.  The victim, however, shot and killed one of the robbers.  One of the other robbers then killed him.

 

A criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony, there being no evidence of malice in the killing of the co-felon by the victim imputable to the defendant.

 

Case #4: Hickman v. Commonwealth, 11 Va. App. 369

 

The appellant and Wesley Beals, his cousin and good friend, took cocaine from a garage and went to Beals= truck to consume part of it.  Appellant put cocaine on a small red mirror.  Beals took the cocaine and injected himself.  After doing this 3 or 4 times, he went into convulsions and lost consciousness.  Appellant drove to the home of a friend, and they determined that Beals was dead.  Appellant was convicted of felony-murder.

 

This was upheld on appeal. The appellant participated as a principal in the first degree, jointly with Beals, in the felonious act of knowingly and intentionally possessing cocaine and participated as a principal in the second degree in Beals= possessory act of ingestion of cocaine.

 

Commonwealth v. Montague, 536 S.E. 2d 910 (Va. 2000) - Defendant stole a car.  Eleven hours later, during a police chase, he lost control of the car and accidentally hit and killed a pedestrian.  The felony-murder rule was held not to apply as the theft and the chase were not parts of the same criminal enterprise.

 

Griffin v. Commonwealth, 33 Va. App. 413 (2000) - Defendant accidentally shot his friend while dancing in their apartment.  Defendant was a convicted felon and his possession of the gun was therefore a felony.  The felony-murder rule was held not to apply as the evidence failed to show that the accidental killing occurred >in furtherance of= the offense of possession of a firearm by a convicted felon.  It is not enough that the killing occur during the felony or while it is being committed.

 

Barrett v. Commonwealth, 32 Va. App. 693 (2000) - Defendant was properly convicted of child abuse when she fell asleep after drinking, leaving her 2-year old daughter playing and giving her 10-month old son a bottle, knowing that her daughter had shown jealousy and aggressiveness toward the baby.  His daughter drowned the baby in the bathtub.

But she was not guilty of felony-murder.  Only acts causing death which are committed by those involved in the felony may be the basis of a felony-murder conviction.

The act causing death must result from some effort to further the felony before malice can be imputed to that act serving as the basis for a felony-murder conviction.

 

29. Capital murder

 

Virginia: 18.2-31

 

Capital murder carries death or 20-life if the defendant is 16 years old or older.  If not, it carries 20-life (18.2-10)

 

The following offenses shall constitute capital murder, punishable as a Class I felony.

The wilful, deliberate and premeditated killing of any person:

 

1) in the commission of abduction, with intent to extort money or with intent to defile the victim

2) by another for hire

3) by a prisoner in a state or local correctional facility or while in the custody of an employee thereof

4) in the commission of a robbery or attempted robbery

5) in the commission of, or subsequent to, rape or attempted rape, forcible sodomy or attempted forcible sodomy

6) of a law enforcement officer when such killing is for the purpose of interfering with the performance of his official duties

7) of more than one person as part of the same act or transaction

8) of more than one person within a 3-year period

9) in the commission of a prohibited drug transaction

10) by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise

11) of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman=s pregnancy without a live birth    

 

30. Murder of a pregnant woman

 

18.2-31: The wilful and deliberate killing of a pregnant woman without premeditation, with intent to terminate the pregnancy - 10-40

 

The premeditated killing of a pregnant woman without the intent to terminate the pregnancy - Murder-I

 

31. Murder-I

 

Premeditated malicious killing other than capital murder. 20-life

 

32. Murder-II

 

Malicious killing without premeditation - 5-40    

 

If there is no intent to kill, only to inflict serious bodily harm, the crime is Murder-II.

 

All murder is presumed to be Murder-II in Virginia.

 

33. Depraved heart murder

 

Requires that the defendant act in an extremely negligent way, creating a very high risk to human life, so as to evince a depraved heart.  It is Murder-II.

 

34. Voluntary manslaughter

 

Eliminates the malice element.

 

Provocation: must be adequate to give rise to a heat of passion in a reasonable person.

 

Words and gestures alone will not amount to adequate provocation unless they give information about something that would justify it.

 

Cooling off period: if sufficient time has elapsed to cool off, malice will still be present.

 

Virginia includes a killing during mutual combat as voluntary manslaughter.

 

Punished as a Class V felony.

 

35. Involuntary manslaughter

 

Killing someone through criminal negligence (reckless - wilful and wanton behavior).

36. Virginia statute of DWI as involuntary manslaughter

 

Traditional tort law in Virginia: when someone is killed through simple or gross negligence, it is not involuntary manslaughter.  DWI is considered gross negligence. It takes criminal negligence.

 

Virginia statutes have modified this approach in connection with driving while intoxicated:

 

If a person is killed by someone who is driving while intoxicated (which is normally only gross negligence), he shall be guilty of involuntary manslaughter. 

 

And if he is in fact acting recklessly (with criminal negligence), he shall be guilty of aggravated involuntary manslaughter (1-20, one year of which is mandatory).

 

Case #5 - Gooden v. Commonwealth, 226 Va. 565 (1984)

 

Defendant was shooting at a deer crossing a power line right-of-way.  His testimony differed from his original statements as to where he was at the time.  The issue involved his criminal negligence.

 

 

Test for involuntary manslaughter: an accidental killing must result in the commission of a lawful act performed in a way so gross, wanton and culpable as to demonstrate a reckless disregard of human life.

 

Case #6: Davis v. Commonwealth, 230 Va. 201 (1985)

 

Defendant lived with her senile and totally disabled mother - she shared her mother=s social security benefits and served as her food stamp representative.  Defendant had no other occupation and her mother received no other assistance.  Her mother died in the hospital after having been diagnosed as having pneumonia, freezing to death and a chronic state of starvation.

 

This was found to be criminal negligence by the defendant, showing a callous disregard for human life.

 

Extra note: To be the victim of a homicide, the fetus must have been born alive.  If the fetus is born dead as a result of injury to the mother, it is considered a battery to the mother.

 

ASSAULT AND BATTERY

 

37. Stalking

 

18.2-60.3: Any person who, on more than one occasion, engages in conduct directed at another person with the intent to place, or with knowledge that the conduct places, that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person=s family or household member -- Class 2 misdemeanor.

 

This becomes a Class 1 misdemeanor if committed when there is an order in effect prohibiting contact with the victim or his family.

 

It is a Class 6 felony to threaten the governor or his immediate family.

 

38. Hazing

 

18.2-56: It shall be unlawful to haze or otherwise mistreat so as to cause bodily injury, any student at any school, college or university.  Class 1 misdemeanor (unless the injury inflicted would justify a felony charge)..

 

Any person receiving bodily injury by hazing or mistreatment shall have a right to sue, civilly, the person or persons guilty thereof, whether adults or infants.

 

The president of any school, college or university receiving state funds, shall expel such student and shall make a report to the Commonwealth=s Attorney for action by the grand jury.

 

39. Battery

 

An intentional touching of another that is either offensive or harmful.

 

Objects held by the victim are considered extensions of the body.

 

A battery does not have to inflict pain or injury.  It can be fairly defined as an illegal touching.  Don=t describe it as unwanted, as many touchings which are unwanted are not illegal.

 

Adams v. Commonwealth, 33 Va. App. 463 (2000) - Shining a laser light on a police officer=s eye was sufficient to constitute a >touching= where the officer felt a stinging sensation as a result, and the defendant admitted that he did not get along with the officer.

 

40. Assault

 

Either the placing in fair or apprehension of an imminent battery (which requires apparent ability) or an attempt to commit a battery (which requires actual ability).

 

In Virginia, both assault and battery have been merged into the misdemeanor of simple assault.

 

18.2-57.1: Assault and battery against a law enforcement officer (knowing or having reason to know that he is a law enforcement officer) with a firearm: Class 1 misdemeanor with a mandatory minimum of 6 months.

 

Aggravated assault and battery: Assault with intent to commit another crime - raises it from a misdemeanor to a felony.

 

41. Victim chosen because of race - Virginia statute

 

18.2-57: If the defendant intentionally selects his victim because of race, religious conviction, color or national origin, the penalty shall include a mandatory minimum or 6 months, 30 days of which cannot be suspended.

 

If bodily injury occurs, it becomes a Class VI felony, with a mandatory minimum or 6 months, 30 days of which cannot be suspended.

 

42. Victim a family member

 

18.2-57.2: If it is against a family or household member, it is a Class 1 misdemeanor, but a third or subsequent offense within 10 years, it is a Class VI felony.

 

43. Object thrown from rooftop

 

If done with intent to cause injury to another, if more than one story above ground level, it is a Class VI felony.

 

44. Mayhem

 

At common law, this was intentionally dismembering a person -- it was designed to prevent persons from rendering others less able to fight for the king.

 

Today it is called maiming or malicious disfigurement.

 

18.2-51: If any person maliciously shoot, stab, cut or wound any person with intent to maim, disfigure, disable or kill....Class III felony if done maliciously --- Class VI felony if done without malice (such as during a heat of passion).

 

There is no presumption of intent to maim from a blow with the fist under ordinary circumstances.

 

If done to a law enforcement officer...5-30 with a mandatory minimum of 2 years (and if done without malice..Class VI felony with a mandatory minimum of 1 year).

 

If done when the victim is totally and permanently disabled....Class II felony.

 

If done with acid, lye or other caustic substance, or explosives....5-30 (without malice a Class VI felony).

 

If done while driving while intoxicated and showing a reckless disregard for human life.. -- Class Vi felony

 

RAPE

 

45. Rape - at common law

 

Forcible sexual intercourse with someone other than your wife.  Only a man could commit it.  Wives could not legally be raped.

 

Also, a man could use reasonable force to make his submit to sexual intercourse.

 

Today, many changes have occurred:

 

a) men can also be raped (gender-neutral)

b) husbands can be guilty in the rape of their wives

c) children who consent are still victims of rape

d) marital sexual assault statutes have emerged

e) older consenting children are victims of a lesser sexual offense

 

The utmost resistance is not required, if it would be dangerous to do so. But the absence of such resistance may be considered when relevant to show that the act was not against the will of the victim.

 

Extra note: there is a rebuttable presumption that a child between 10 and 12 is not physically able to commit rape.

 

46. Carnal knowledge

 

18.2-63

 

Sexual intercourse with a consenting child between 13 and 15:

 

a) if committed by an adult - Class IV felony

b) if committed by a child more than 3 years older than the victim - Class VI felony                          

c) if committed by a child less than 3 years older than the victim: fornication

 

18.2-66: If the carnal knowledge be with a child at least 14 years old, the subsequent marriage of the parties shall act as a defense - the court shall continue the case from time to time and when the victim reaches 16, if the defendant has supported the victim and any offspring, the case shall be dismissed....if not, the defendant can be prosecuted on the original charges.

 

47. Statutory rape

 

Voluntary sexual intercourse with a child under 13.  Consent is no defense and good faith in the belief that the child is older is no defense.

 

48. Marital rape

 

Forcible sexual intercourse by one spouse against the other if either they are separated or there is serious injury.  It is considered rape (not a reduced version).

 

49. Marital sexual assault

 

A lesser offense if one spouse forces the other to have sexual intercourse and they are living together and there is no injury....1-20.

 

50. Forcible sodomy - treated the same as rape

 

Carries the same penalty as rape.

 

Voluntary sodomy is also a crime, even between consenting adults -- and even between husband and wife (although a U.S. Circuit Court of Appeals case indicates that spouses may rely on their right of privacy -- a strange approach to this problem).

 

51. Evidence in rape cases

 

General reputation or opinion as the victim=s unchaste character or prior sexual conduct is not admissible.

 

18.2-67.7: Evidence of specific instances of the victim=s prior sexual conduct is admissible only if it is relevant and is:

 

A) offered to provide an alternative explanation for physical evidence of the offense charged which has been introduced by the prosecution (limited to explaining the presence of semen, pregnancy, disease or physical injury to the victim=s intimate parts)

 

B) Evidence of sexual conduct between the accused and the victim offered to support a contention that the alleged offense was not accomplished by force           

 

52. Testimony by child victims

 

18.2-67.9: If the victim is a child aged 12 or under, the court has the discretion to allow the child to testify via closed circuit television -- this includes preliminary hearings as well as trial.

 

53. Exclusion of persons at preliminary hearings

 

18.2-67.8: In rape (or other sexual offense) cases, the court may exclude from the courtroom all persons except those whose presence would be supportive of the victim or the accused and would not impair the conduct of a fair hearing.

 

54. Incest

 

18.2-366 - It is a class.. I misdemeanor to have sexual intercourse with any person with whom one is forbidden to marry.

 

And a Class V felony for a person to have sexual intercourse with his daughter or granddaughter, or her son or grandson -- and a Class III felony if the victim is 13-18.

 

Case #7: Kifer v. Commonwealth, 228 Va. 256 (1984)

 

In February, 1983, husband moved out.  Previously, she had left the husband from early January to the middle of February, but returned at that time and told him she wanted to reconcile.

They were en route to a lawyer for a separation agreement in February when she told him that she did not want to separate at that time.  De had not had sexual intercourse with him for 5 months prior to March 6 (the date of the incident).  On that date, he kicked the door to the home in when she refused him admittance and forced her to have sexual intercourse with him.

He was convicted of spousal rape by the trial court.

 

A wife=s revocation of implied consent to marital intercourse by a manifest intent to terminate the marital relationship must be shown by evidence establishing beyond a reasonable doubt: (a) that the wife has lived separate and apart from her husband; (b) she has refrained from voluntary sexual intercourse with him: c) and in light of all the circumstances, she has conducted herself in such a manner manifesting objectively to her husband that the marriage has ended de facto.

 

The evidence failed to establish the necessary revocation of consent -- her conduct over the prior six months was equivocal, indefinite and ambiguous.

 

Case #8: Snyder v. Commonwealth, 220 Va 792 (1980)

 

Defendant entered the victim=s home and had intercourse with her.  He testified that she consented, as she had on previous occasions.  She testified that she had not seen him before and did not consent.  He was convicted.

 

There muse be evidence of some array or show of force sufficient to overcome resistance to sustain a conviction of forcible rape.  Utmost resistance is not required if the victim believes it would be useless or cause her serious bodily harm.

 

 

A rape conviction can be sustained solely on the testimony of the victim, but not if such testimony is inherently incredible or so contrary to human experience as to render it unworthy of belief.

 

The evidence was not so inherently incredible -- was a jury issue -- conviction affirmed.

 

KIDNAPING

 

55. Kidnaping

 

The unlawful taking and confinement and asportation of another person by use of force, threat or deception.

 

Most courts require that the victim be moved a substantial distance (not Virginia).

 

If the asportation is only incidental to the crime (ie. Ordering a bank teller to move fro her window to the vault), it would not be sufficient to constitute this element.

 

18.2-47 - If a person, who, by force, intimidation or deception..seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person lawfully entitled to his charge, shall be guilty of abduction.....class. V felony.

 

18.2-47 - If committed by a parent and is subject to a contempt finding...Class I misdemeanor in addition to being held in contempt ----- if removed from the Commonwealth....Class VI felony.

 

18.2-48 - Abduction with intent (1) to extort money; (2) to defile the victim; (3) to put a child under 16 into prostitution.....Class II felony.

 

18.2-50 - Whenever it is brought to the attention of the members of the immediate family of any person that such person has been abducted, such members shall make immediate report thereof to the police... and shall render such assistance to the police.....Class II misdemeanor.

 

CHAPTER 5 CRIMES AGAINST PROPERTY

 

58. Arson

 

18.2-77 - If any person malicious burns, or by use of any explosive device destroys, in whole or in part, of any dwelling house or any occupied hotel, hospital, mental health facility, or other house in which persons usually dwell or lodge, any occupied railroad car, boat, vessel or river craft in which persons usually dwell or lodge, or any occupied jail or prison, or any occupied church.....5-life + $100.00.00 fine

 

Any such burning when the building or other place is unoccupied....Class IV felony.

 

 

There is no requirement that this occur at night.

 

There is no specific obligation on the part of the defendant to establish lack of occupancy.

 

59. Arson compared with older statute

 

Compare with the old statute: If any person in the nighttime, maliciously burn...any dwelling house....he shall be guilty of a Class II felony; but if the jury finds that such dwelling house was temporarily unoccupied...Class III felony.

 

This appeared to require evidence of lack of occupancy to reduce the penalty, which the defendant would have to introduce.  Without any evidence as to occupancy, the higher penalty would be established.

 

But there was also a case interpreting the old statute...Davis c. Commonwealth, 16 Va. App. 6 (1993), which interpreted the >temporarily unoccupied= phrase in the old statute to mean not that no one happened to be at home but that it was not then being used as a dwelling at all.

 

This earlier statute also made arson during the day a Class IV felony.

 

Other points

 

When a building is burned, the law presumes the fire was caused by accident.

 

18-2-78 - No outhouse, not adjoining a dwelling house, nor under the same roof, although within the curtilage thereof, shall be deemed a part of such dwelling house unless someone usually lodge therein at night.

 

18.2-80 - If done with intent to defraud an insurance company or other person.....Class III if someone is inside......Class IV if no one is inside.

 

BURGLARY

 

60. Burglary

 

At common law, this was the breaking and entering the dwelling of another at night with intent to commit a larceny or felony therein.

 

61. Elements of burglary described

 

Breaking: to open a door or window (not destruction).  It means to change the condition of the outside of the house to gain entry.

 

Merely walking through an open door is not sufficient.

 

Entry: any part of the person=s body will suffice.

 

Includes constructive entry, which would include sending a trained animal inside or doing something from the outside which would have an effect inside (ie. Shooting a gun from outside or using monitoring equipment to hear from outside what would normally require you to be inside).

 

Dwelling: now includes other things such as boats, railroad cars, offices, etc. in the statutory versions.  But it has to be the dwelling of another.

 

Turner v. Commonwealth, 33 Va. App. 88 (2000) - The home was jointly owned by the defendant and his estranged wife.  She had been living there for a year and he lived elsewhere. The home she occupied was their former marital abode.  He had been ordered to have no contact with her due to his post-separation assault on her.

This was the >dwelling of another= for burglary purposes.

 

Night: some statutory versions do not require this.  When it is required, the common law definition of night is not enough light to discern a person=s facial features.  Virginia defines night as one hour after sunset to one hour before sunrise.

 

Night can be established by circumstantial evidence -- Inman v. Commonwealth (Va. App. 1990) - Because the burglar apparently needed to turn on the lights, the jury could reasonably infer that it was dark at the time of the burglary. -- Also Pair . Commonwealth (??)

When melted candle wax was discovered throughout the house, a nighttime burglary could reasonably be established.

 

62. Constructive breaking

 

Occurs when entry is gained by fraud or force.

 

63. Statutory burglary

 

In Virginia, there are numerous statutes including:

 

A) at night without breaking, or breaking during the day

b) entering a dwelling, office, shop, warehouse, bank, ship, railroad car, auto, truck or trailer (if used as a dwelling) with intent to commit murder, rape or robbery (1-20 or up to 12 mos in jail -- Class II felony if armed)

 

Possession of burglary tools with intent to commit a burglary, robbery or larceny....Class V felony.  Such possession is prima facie evidence of intent.

 

Other points

 

The unexplained possession of recently stolen goods gives rise to the inference that the possessor is the thief, and this inference extends to an inference of burglary once a burglary has been established independently of the possession of the goods which came from it.

Case #9 - Bright v. Commonwealth, 4 Va. App. 248 (1987)- The Commonwealth may establish a prima facie case of burglary by proving that the goods were stolen from the house which was broken into, justifying the inference that both offenses were committed at the same time, by the same person and as part of the same criminal enterprise, and by proving that the goods were found soon thereafter in the possession of the accused.

 

C/a/b: On the night of 11-5-84, the victim left his house unoccupied.  Later that week, he discovered that a handgun and pocket watch were missing from the house. He also noticed that a new window he was installing ws partially opened after he had secured it with shipping blocks that came with the window. The defendant was later apprehended after trying to sell the handgun.

 

Case #10 - Jones v. Commonwealth, 3 Va. App.295 (1986)

 

A silent alarm was activated in a Memco store after closing.  The police responded and found the doors secure.  The night manager let them in and found appellant and another inside.  Goods had been moved from their original location in the store.

 

A constructive breaking occurs when the accused, with intent to steal, enters the premises with the consent of the owner, but with the intent to secret himself on the premises until closing and to then steal property.

 

LARCENY

 

64. Larceny - to take a and carry away the property of another with intent to permanently deprive the owner thereof.

 

Grand larceny: goods of $200 or more

Petit larceny: goods under $200

 

65. Larceny from the person - same as pickpocket

 

Grand if over $5

 

Other points

 

Grand larceny also includes stealing of a handgun, rifle or shotgun.

 

Penalty for grand larceny in Virginia is 1-20 or up to 12 mos in jail.-- 18.2-95

 

Asportation - some carrying away, however slight, is sufficient.

 

Property must belong to another.  And be against his will -- lost property can be stolen

where abandoned property cannot be.

 

Owner must testify that it was taken against his will.  - Judge Beard=s case.- Someone took a piece of luggage from the Greyhound Bus terminal and ran off.  He was apprehended by the police.  The government produced only the officer at trial -- and the case was dismissed.

 

Claim of right defense - if the defendant has a good faith belief that the property belongs to him.

 

Permanently deprive requirement - led to the enactment of UUV statutes.

 

Virginia has a recidivist statute which raises the penalty for subsequent offenses (30 days - 12 mos for a second offense --- third offense is a Class VI felony) - 18.2-104

 

67. Concealment

 

Includes concealment of goods, alteration of price tags and the transfer of goods from one container to another -- all with intent to steal. -- 18.2-103

 

Considered guilty of larceny (grand or petit depending on value).

 

68. Power of a merchant to detain on probable cause

 

18.2-105 - A merchant shall not be civilly liable for the arrest or detention of a suspected shoplifter provided it does not exceed one hour provided the merchant had probable cause for the detention.

 

Such detention is not governed by the requirements of Miranda. - Vazirnezami v. Commonwealth, (Va. App. 1991)

 

69. Receiving stolen property

 

18.2-108 - If any person buy or receive any stolen goods, knowing the same to have been stolen, he shall be guilty of the larceny thereof, and be proceeded against even if the principal offender not be convicted.

 

Actual knowledge is necessary -- it is not sufficient that a reasonable person would have known.

 

70. Unauthorized use

 

18.2-102 - Any person who shall take, drive or use any animal, aircraft, vehicle or boat without the consent of the owner, with intent to temporarily deprive the owner of his possession thereof, without intent to steal the same.....Class VI felony --- if the thing used is valued at less than $200 ......Class I misdemeanor.

 

The consent of the owner shall not be presumed because of the consent of the owner on a previous occasion.

71. Embezzlement

 

18.2-111 - Embezzlement is deemed larceny.

 

It is the unauthorized and fraudulent use of money or other thing of value, having first received it legitimately from an employer or by virtue of his profession.

 

Intent to return is immaterial.

 

There need be no intent to permanently deprive the owner thereof.

 

72. False pretenses

 

A false representation of a material present or past fact made with knowledge that the fact is false and with intent to defraud the victim thereby causing the victim to pass title to the wrongdoer.

 

Tricking a person into transferring possession (rather than title) is larceny by trick.

 

18.2-178 -- deemed guilty of larceny.  But if he obtains the signature of the victim to a document, the false making thereof would be forgery.....Class IV felony.

 

73. Forgery and uttering

 

Forgery - the making or materially altering of a legal document with intent to defraud.

 

Uttering - the passing of a forged document as genuine with intent to defraud.

 

Forgery  is complete when the writing is made -- it need not actually defraud the intended victim.

 

They are separate crimes and can be punished consecutively.

 

Forgery addresses the genuineness of the document itself, not the representations it contains. Thus, an employee who adds time to his time card is not guilty of forgery, because the card is genuine -- but he would be guilty of false pretenses.

 

74. Robbery

 

Taking personal property from the person of another by force or threat with intent to steal - the common law definition.  The Virginia statute only provides the penalty.

 

It must be taken from the person=s presence.

 

Pickpocket: in Virginia, this is larceny from the person -- in D.C., this is robbery.

Penalty - 18.2-58 - 5-life.

 

Carjacking - 18.2-58.1 - The intentional seizure of the motor vehicle of another with intent to permanently or temporarily deprive another of possession of the vehicle by force or threat of force ----15-life.

 

This is a crime against the person as well as the person=s property.  The violence must precede the taking.  It does not cover the case where a person take=s the victim=s keys and then deprives the victim of her vehicle.  Bell v. Commonwealth, 21 Va. App.693 (1996)

 

 

75. Extortion

 

18.2-59 - If any person threaten injury to the character, person or property of another person or accuse him of any offense and thereby extort money, property or pecuniary benefit....Class V felony.

 

The guilt or innocence of the victim of the extortion is irrelevant.  >Whether persons upon whom extortion is practiced are vicious or virtuous, they are equally entitled to the protection of the law.= Mitchell v. Commonwealth, 75 Va. 856 (1880)

 

Claim of right is not considered a defense in Virginia. U.S. v. Teplin, 775 F. 2d 1261 (4th Cir. 1985).

 

Public disclosure or even proposed public disclosure is not extortion unless coupled with an effort to obtain money or other value from the victim. Wood v. Commonwealth, 8 Va. App. 560 (1989)

 

CRIMES AGAINST THE PUBLIC (CHAPTER 6)

 

These are victimless crimes and include crimes against morality, the public order and the administration of government.

 

Crimes against morality

 

76. Fornication

 

18.2-344 - Any person, not being married, who voluntarily shall have sexual intercourse with any person --- Class IV misdemeanor.

 

77. Lewd and lascivious cohabitation

 

18.2-345 - If any persons, not married to each other, lewdly and lasciviously associate or cohabit together, or whether married or not, be guilty of open and gross lewdness and lasciviousness.....Class III misdemeanor (Class I on repetition).

This statute is not aimed at fornication but at conduct, which by its openness and notoriety, tends to affront the public conscience and debase the community morality.

Everett v. Commonwealth, 214 Va. 325.

 

To constitute the offense, it is essential that it be proved that the parties live together in the same house as man and wife.  Proof of occasional acts of incontinence is not sufficient. - Jones v. Commonwealth, 80 Va. 18 (1885).

 

Other point

 

Taking indecent liberties with a minor (defines >lascivious=)

 

Moyer v. Commonwealth, 33 Va. App. 8 (2000) - The word >lascivious= describes a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite (18.2-370.1). 

Evidence was sufficient that the defendant acted with lasciviousness when the victims= testimony and the defendant=s journal entries demonstrated that he used his position as an adult role model to gain the trust of the victims, that he and the victims engaged in repeated nude paddlings, and that he was aroused sexually during at least two of the encounters.

 

78. Prostitution

 

18.2-346 - Any person who, for money or its equivalent, commits adultery, fornication...or offers to...and thereafter does any substantial act in furtherance thereof.....

Class I misdemeanor.

 

18.2-346.1 - As soon as practicable after conviction, the defendant shall submit to AIDS testing and counseling about AIDS.

 

18.2-347 -- It is a Class I misdemeanor to maintain a bawdy house.

 

79. Pimping

 

18.2-356 - Any person who shall receive money for procuring a customer for a prostitute

--- Class IV felony.

 

18.2-357 - Any person who shall knowingly receive any money from the earnings of a prostitute, except for consideration deemed good and valuable in law......Class IV felony.

 

80. Indecent exposure

 

18.2-387 - A Class I misdemeanor -- does not include breastfeeding.

 

81. Obscenity

 

18.2-372 - The word Aobscene@ shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

 

U.S. v. Guglielmi, 819 F. 2d 451 (4th Cir. 1987) - Materials that have a tendency to excite a lustful, shameful or morbid interest in nudity, sex or excretion meet the prurient interest element.  Material that provoked normal, healthy, sexual desires is not obscene because it does not appeal to prurient interest.

 

18.2-374 - It shall be unlawful for any person knowingly to:

 

a) prepare any obscene item for the purpose of sale or distribution

b) print, copy, manufacture, produce or reproduce any obscene item for sale or distribution

c) publish, sell, rent, lend, transport in interstate commerce, or distribute or exhibit any obscene item

d) have in his possession with intent to sell, rent, lend, transport or distribute any obscene item.

 

18.2-374.1:1 - Any person who knowingly possesses any sexually explicit visual material utilizing or having as a subject a person less than 18 years of age.....Class III misdemeanor

(Class VI felony for subsequent offense)

 

NOTE: mere possession of child pornography is required whereas possession with intent to distribute is necessary for other types of pornography.

 

82. Unlawful assembly

 

18.2-406 - Whenever 3 or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order...Class I misdemeanor

(and any person carrying a weapon ... Class V felony).

 

WEAPONS OFFENSES

 

83. Carrying concealed weapons

 

18.2-308 - If any person carries about his person, hidden from common observation (i) any pistol, revolver, or any other weapon designed or intended to propel missile of any kind;

(ii) any dirk, bowie knife, switchblade knife, ballistic knife, razor, slingshot, spring stick, metal knucks or blackjack; (iii) any flailing instrument.....(iv) any disc........Class I misdemeanor

(second offense a Class VI felony and a third offense a Class V felony).

 

84. Not applicable to home or business

 

D.C. allows possession of weapons in one=s home or business.

 

Virginia (below) does not include the business exception (except if it is not concealed, it would be a violation there).

 

85. Carrying to place of repair

 

This section shall not apply to:

 

1. Any person while in his own place of abode or curtilage thereof

2. Police officers

3. Member of a target shooting organization (at or en route to a range) provided the weapons are unloaded and securely wrapped while being transported

4. Member of a weapons collecting organization (at or en route to an exhibition) with same limitations in #3 above.

5) Any person carrying such weapon between his place of abode and a place of purchase or repair with same limitation as #3 above

6. Hunters who need to shelter the weapons from inclement weather

7. Retired law enforcement officers (with 15 years experience)

 

18.2-308 - Virginia allows a permit to carry a concealed weapon for those at least 21 years old - with many limitations on who can get such a permit --- good for 5 years.

 

18.2- 308.2 - Convicted felons cannot possess or carry weapons ... Class VI felony.

 

18.2-287.4 - It is also a state crime to carry weapons in cities and certain counties, whether concealed or not.

 

86. Comparison with D.C. rules

 

D.C. prohibits carrying weapons which are capable of being concealed on or about your person.  - See Judge Belson=s case.   

 

Other points

 

Brandishing

 

18.2-282 - It shall be unlawful for any person to point, hold or brandish any firearm, or any object similar in appearance to a firearm, whether capable of being fired or not, in such a manner as to reasonably induce fear in the mind of another......shall not apply in the use of self-defense......Class I misdemeanor.

 

18.2-281 - Setting a spring gun ...Class VI felony.

18.2-56.2 - It shall be unlawful for any person to recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb of any child under the age of 14...

Class III misdemeanor

 

It shall be unlawful for any person knowingly to authorize a child under the age of 12 to use a firearm except when the child is under the supervision of an adult....Class I misdemeanor.

 

CHAPTER 7 - PARTIES AND INCHOATE OFFENSES

 

87. Parties to a crime - Principal

 

The perpetrator -- the one who actually commits the act

 

88. Aider and abettor

 

Also called a principal in the second degree -- one who assists the principal commit the crime at the scene (although constructive presence is sufficient).

 

89. Accessory before the fact

 

One who assists in the planning of the crime

 

Other points

 

 

The above 3 are all treated the same -- as a principal -- and face the same penalty.

 

18.2-18 - A principal in the second degree is not treated the same as a principal in the first degree in capital murder cases (and therefore does not face the death penalty) except in cases of murder for hire and murder pursuant to the direction of one who is engaged in a continuing criminal enterprise (these do face the death penalty).

 

Victim immune - a victim (as a child in a statutory rape case) who encourages the commission of a crime cannot be guilty as an accessory.

 

Query: How about the female in an illegal abortion?

 

Incapacity to commit a crime - a person who cannot legally commit a crime can be an accessory to one who can.

 

90. Accessory after the fact

 

One who assists the principal after the commission of the crime (knowing it was committed but not having knowledge of it prior to its commission).

 

Such persons are treated more leniently.  In Virginia, it is a misdemeanor to be an accessory after the fact to a felony (18.2-19) -- but it is not a crime to be an accessory after the fact to a misdemeanant.

 

In D.C., an accessory after the fact to a felony faces half the penalty faced by the others.

 

91. Classes of persons not included as accessories after the fact

 

In Virginia, certain classes of people cannot legally be guilty as accessories after the fact:

spouses, children/parent, grandchildren/grandparent, siblings (by consanguinity or affinity) and servants.

 

Case #11 - McGhee v. Commonwealth, 221 Va. 422 (1980)

 

Defendant had a sexual relationship with the killer that continued after the murder.  She had urged the killer to kill her husband so he would not discover their relationship and so they could keep on seeing each other.  She told the killer where her husband could be found.  She was not present at the murder, did not know when it occurred and knew none of the details of the crime.

 

An instigator of a crime is an accessory before the fact even though he or she did not participate in the planning of the crime or even though unaware of the precise time of the crime=s commission or of the precise method employed by the principal.

 

Case #12 - Sutton v. Commonwealth, 228 Va. 654

 

            Shortly after her arrival, her aunt, Mrs. Sutton, told the victim that she would get over her fear of men if she had sexual intercourse with Mr. Sutton. She refused and also refused his approaches. She eventually agreed to have intercourse after being told she would not get school clothes and other items she needed and that she would have to return to her abusive father.

Mrs. Sutton was in the same bed during the intercourse.  The victim asked him to stop but did not fight because she was afraid he would beat her (having witnesses his violent temper) or that he would send her back to her father.

 

Defendant, Mrs. Sutton was guilty as a principal in the second degree in that she actively encouraged her husband=s commission of the crime and engaged in supporting activity as part of a common purpose.

 

Case #13 - Bailey v. Commonwealth, 229 Va. 258 (1985)

 

Defendant had an extended argument with the victim over the CB radio, during which each participant cursed and threatened the other.  The victim was legally blind, and known to the defendant as visually impaired and intoxicated on the night in question.  Defendant, who was also intoxicated, knew the victim had a handgun and was easily agitated, especially by disparagement of his war hero, Gen. George S. Patton.  Over the radio, defendant accused the victim and General Patton of being homosexuals, and demanded that the victim arm himself with the handgun and wait on his front porch for defendant to come and injure or kill him.  The victim indicated that he would be waiting and that defendant would be killed.  Defendant then made an anonymous call to the local police, to the effect that a man at the victim=s address was on a porch waiving a gun around.  After a patrol car failed to observe anyone on the porch, defendant made another radio call to the victim and chided him for not going out on the porch.  Defendant told the victim that he would arrive in a blue and white car in a short time. The defendant then called the police again, identified the victim by name, and told the dispatcher that the victim had a gun, had threatened to shoot up the neighborhood and was talking about shooting anything that moved. Defendant did not identify himself to the police, but insisted that they come out to the victim=s address and told the police that he was right next to the victim at the time of the call.

 

The officers responded.  They saw him emerge from the house with a shiny object in his hand.  When ordered to stop and drop the weapon, he advanced on the officers and opened fire.

In the return fire, he was killed, protesting that he did not know they were police officers.

 

In the investigation that followed, he told the police that he was Athe hoss that caused the loss.=  He was convicted of manslaughter. An instruction was properly given on criminal negligence.

 

The innocent agent rule applies even if the defendant was not present at the time and place of the offense.

 

One who effects a criminal act through an innocent or unwitting agent is a principal in the first degree.

 

Case #14 - Dusenbery v. Commonwealth, 220 Va. 770 (1980)

 

Defendant came upon a teenage couple partially undressed in a secluded area in preparation for sexual intercourse.  Defendant, a uniformed security guard and wearing a pistol, ordered the couple to finish what they had started.  They tried unsuccessfully and he seized the boys=s penis and forced it partially into the girl=s vagina.  He was convicted of rape at trial.

 

This was reversed on appeal.

 

He could not be convicted as a principal in the second degree, because the crime was never committed by a principal in the first degree. The boy did not rape the girl.

 

While in some jurisdictions, the innocent agent rule has been applied in rape cases where the accused forced an innocent third party to have carnal knowledge of an unwilling victim, this rule is antithetical to the construction the Court has placed upon 18.2-61.

 

ATTEMPTS

 

92. Attempts - 2 theories

Last act theory - the common law view that everything except the act itself be done before the attempt is complete.  This is no longer the rule in Virginia.

 

Material factor theory - an unfinished crime, requiring the intent to commit the crime and the doing of some direct act toward its consummation but falling short of the accomplishment of the ultimate design.  Johnson v. Commonwealth, 209 Va. 291 (1968)

 

Mere preparation is not a crime (unless you are working with someone else, which would make it a conspiracy.

 

Parsons v. Commonwealth, 32 Va. App. 576 (2000) - Defendant visited a gunshop, selected the weapon he wished to purchase, completed and signed the forms required. That was sufficient to constitute an attempt to purchase a firearm (as a convicted felon) even though he never paid for it or accepted delivery of it.

 

Although it is impossible to adopt a bright line rule for distinguishing acts of mere preparation from acts that constitute an attempt, it may be said that preparation consists of arranging the means or measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made.

 

There must be some appreciable fragment of the crime committed - it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.

 

Hopson v. Commonwealth, 15 Va. App. 749 (1993) - Evidence that the defendant and his companion were outside a store behaving suspiciously and repeatedly peeking around the corner of the building, that the companion had a pistol, that the defendant had a mask covering his face at one time, and that the companion entered the store on several occasions, apparently to reconnoiter, was not sufficient to demonstrate, was not sufficient to demonstrate an overt act directed toward the consummation of a robbery.

 

93. Abandonment of an attempt

 

If the attempt is made by an accessory, and the accessory abandons the attempt, this will act as a defense as long as he:

 

a) communicates his intent to abandon the attempt to the principal

b) renders his prior aid ineffectual if possible

c) do so with enough time left for the principal to stop going forward

 

Merger - once the completed crime is committed, you cannot also be guilty of the attempt.

 

Virginia=s penalties for attempts:          

 

a) if the felony attempted carries the death penalty -- Class II felony

b) if the felony attempted carries 20-life -- Class IV felony

c) if the felony attempted carries 20 years -- Class V felony

d) if the felony attempted carries less than 20 years - Class VI felony

 

For a misdemeanor, it is the same penalty.

 

94. Impossibility as a defense to attempts - legal and factual impossibility

 

Legal impossibility - the attempt to commit an act which in fact is not a crime is itself not a crime.  So if the house you are trying to burglarize happens to be your own, it is not an attempt to try to do it.

 

Factual impossibility - this will be a defense if the wrongdoer unreasonably believes that it can in fact be done (such as trying to kill someone by sticking a pin in a doll).

 

It will not be a defense if he reasonably believes it is possible, however (such as a person pulling the trigger of an empty gun that he believes to be loaded).

 

The text suggests that the attempt to smoke marijuana is a crime even if the substance turns out not to be marijuana.  Jurisdictions may vary on this (although it does seem to line up with the empty gun example).

 

95. Brown v. Commonwealth, 24 Va. App. 284 (1997) discussed

 

An interesting case -- Defendant approached the victim from behind and said Agive me your money.@ The victim ignored him and kept walking.  He then demanded money a second time, using a stern voice.  This time, the victim turned around and saw the defendant pointing a gun at him. Defendant again demanded the wallet, which the victim turned over.  The wallet was empty and the defendant walked a few steps away, threw it to the ground and left.

 

The issue is whether an attempted robbery instruction should have been given.

 

The court of appeals found that it was proper to refuse it.  It found that the abandonment of the wallet because it did not contain any money did not nullify the defendant=s intent to deprive him of his money when he demanded and received the wallet.

 

A dissenting opinion (seemingly better reasoned) suggested that a jury could find that the defendant only wanted to see if the wallet contained any money and had no intention of permanently depriving the victim of the wallet itself.  Thus an attempted robbery instruction would have been appropriate.

 

Case #15 - Nobles v. Commonwealth, 218 Va. 548 (1977)

 

Defendant went at night with another to the home of the victim.  He broke into her home through a window, went to her bedroom and lay down on the floor beside her bed.  When she awoke and saw him, she screamed.  He put her hands over her nose and mouth, then put a pillow over her face, wrapped a pillow case around her head and beat her with a blunt object.  Defendant told her not to move and that he would kill her if she did.  He was later arrested and charged with attempted murder. His conviction was upheld on appeal.

 

A person is presumed to intend the immediate, direct and necessary consequences of his voluntary act.  This is generally a jury question.

 

The evidence was sufficient that he intended to kill her, any one of the defendant=s three specific acts being sufficient to kill her if not thwarted, and his statement that he would kill her, although conditional, showed his state of mind.

 

Case #16 - Sizemore v. Commonwealth, 281 Va. 980 (1978)

 

Defendant was being investigated for his involvement in a traffic accident.  While the trooper was talking outside with his sister, he approached them and pointed his loaded rifle at him, but was persuaded by another at the scene to surrender the weapon.  He as convicted of attempted murder.  This was upheld on appeal.

 

The procuring of a loaded gun, the act of aiming it, the threats to kill and the act of advancing on the intended victim were all acts which the trial court could have found were done in furtherance of an intent previously formed.  Pulling the trigger, the last proximate act of murder, was unnecessary to constitute the crime of attempted murder.

 

CONSPIRACY AND SOLICITATION

 

96. Conspiracy

 

An agreement between two or more persons to commit an unlawful act.

 

An overt act is required in Virginia.

 

It is a crime separate from the one contemplated and does not merge if the contemplated crime is in fact committed.

 

97. The Wharton rule

 

If the crime contemplated requires two persons to commit, a conspiracy to commit that crime requires a minimum of 3 people.

 

98. Conviction of the substantive offense a bar in Virginia

 

18.2-23.1 - The conviction of the substantive offense acts as a bar to prosecution for the conspiracy to commit that offense.  The opposite does not follow, however.  One can be convicted of a conspiracy and then for the substantive offense.

 

Other points

 

If two people are involved and one is considered a victim (as a woman in the Mann Act), there can be no conspiracy.

 

If two people are involved and one cannot legally commit the contemplated crime (such as a man conspiring with another man to rape his wife -- before the rape laws changed) he can be part of a conspiracy.

 

A conspirator will be liable for other offenses committed by other members of the conspiracy provided those offenses were reasonably forseeable.

 

Penalties: 18.2-22

 

If the contemplated crime carries the death penalty, the conspiracy to commit is a Class III felony.

If the contemplated crime is a noncapital felony, the conspiracy to commit it is a Class V felony.

If the contemplated crime carries less than 5 years, the conspiracy to commit it carries one year in prison (or up to 1 year in jail + $500.00)

 

99. Solicitation

 

18.2-29 - Any person who commands, entreats or other otherwise attempts to persuade another person to commit a felony, he shall be guilty of a Class VI felony.  If the defendant is over 18 and he attempts to persuade a person under 18 to commit a crime, it is a Class V felony.

 

It does not matter that the crime solicited is not in fact committed.

 

If the crime solicited is in fact committed, the defendant will be guilty as an accessory before the fact to the completed crime.

 

One cannot be guilty of both solicitation of an offense and an accessory before the fact to that same offense.

 

There is no crime to entreat another to have sexual intercourse (fornication) as that is only a misdemeanor Weatherford v. Commonwealth, (Va. App. 1992)

 

CHAPTER 8 - DEFENSES TO CRIMINAL ACCUSATIONS

 

100. Affirmative defenses

 

Defenses which raise issues that the government does not otherwise have to deal with.  They must be proven by the defendant in Virginia in order to succeed.

 

101. Insanity

 

An affirmative defense. - If the defendant cannot form the necessary criminal intent, he cannot be held liable.

 

Virginia follows two rules:

 

1) M=Naghten rule - also known as the right-wrong test. The defendant must have been suffering from some mental disease or defect so that he was unable to understand the nature and quality of his act or that the act was wrong.

 

2) Irresistible impulse - the defendant is not liable if he is suffering from some mental disease or defect so that he was unable to control his behavior, even though he knows that what he is doing is wrong.

 

102. Procedure in insanity cases

 

Jurisdictions vary on who has the burden and what that burden is.

 

The federal system requires that the defendant prove his insanity by >clear and convincing= evidence.

 

Taylor v. Commonwealth, 208 Va. 316 (1967) - A person claiming insanity as an affirmative defense must prove his insanity to the satisfaction of the fact-finder, which is one step beyond proof beyond a reasonable doubt.

 

Bifurcated trial - first part to determine the factual issues -- the second part, if necessary, to determine the issue of insanity -- same jury.

 

After an NGI finding - after a person is found no longer to be dangerous to himself or others, he will be released.

 

Case #17 - Godley v. Commonwealth, 2 Va. App. 249 (1986)

 

Defendant shot and killed his girlfriend at her work.  She was walking across the parking lot when he drove up, got out of his car, struck her and then shot her with a pistol he was carrying.  He then walked into the plant and told a work to call the police because he had just killed his >old lady.=  He returned to the parking lot and placed a blanket under her head.  When the police arrived, he told them AI shot her.=

 

He told a psychiatrist who later examined him that, when he realized that his girlfriend had left him, he went to find her at her work.  An argument ensued and she confronted him with  the revelation that her child, whom he thought was his, was in fact not his.  He then hit her with his gun, grabbed her, pulled her, and when she resisted the gun fired.

 

Psychiatric testimony indicated that he may have had trouble with impulse control, but not that he was >totally deprived of the mental power to control or restrain= himself from shooting his girlfriend.

 

The trial judge had adequate evidence to find that he had control prior to and subsequent to the slaying.  The psychiatric testimony was ambiguous, and the trial judge=s rejection of the insanity defense was proper.

 

103. Incompetency

 

Insanity at the time of trial.

 

Test for competency to stand trial - the defendant must understand the nature of the proceedings and be able to assist his attorney in his defense.

 

If found incompetent, he will be held until found competent.  If his condition lasts more than a year, he must be released (at which time a civil commitment, based on his dangerousness may be obtained).

 

If found incompetent after trial, a defendant must be sent to a mental facility (it would be an 8th Amendment violation to execute an insane person).

 

104. Amnesia

 

Generally not a defense, although it might be arguable that a person suffering from amnesia cannot effectively assist his attorney in his defense.

 

Leroy Nesbitt=s case

 

 

105. Duress

 

The threat of imminent serious bodily harm (even to others) thereby forcing another to commit a crime.

 

Duress will not justify the taking of a human life.

 

Military orders (or orders by any superior) which are clearly illegal, will not amount to duress as a defense.

 

Duress cannot be claimed if the defendant improperly brought on the situation which resulted in the duress being applied (as the joining of a street gang and then being ordered by the leader to kill someone).

Case #18 - Pancoast v. Commonwealth, 2 Va. App. 28 (1986)

 

A nurse was pressured by her addict-husband to fraudulently obtain prescription drugs.  He used various forms of mental and physical abuse, including slapping her.

 

Even though this was found to be substantial pressure, it was not found to be duress because she could have told the pharmacist that it was fraudulent (he was not with her when she was inside the store).  She therefore failed to take advantage of an alternative to criminal conduct.

 

A defendant must show that his actions were the product of threats inducing a reasonable fear of immediate death or serious bodily injury.  If the defendant fails to take advantage of a reasonable opportunity to escape, he may not rely on the defense.

 

106. Necessity

 

Necessity is produced by natural forces rather than the acts of another person.

 

This involves the requirement that one choose the lesser of two evils.

 

The potential harm must be great and the harm actually done must be less serious than the harm avoided.

 

SELF-DEFENSE

 

107. Self-defense

 

The affirmative defense which allows a person to use reasonable force in defending himself from an imminent battery.

 

Deadly force - force which is likely to produce death or serious bodily harm.

 

 

It can be used if the defendant reasonably believed that such force was necessary to repel the use of deadly force against him. 

 

Non-deadly force - force which is not likely to produce death or serious bodily harm.

 

It can be used to repel an unlawful touching providing a only a reasonable amount of such force is used.

 

There is a general rule that an aggressor cannot claim self-defense.  However, the modern view allows the use of deadly force in self-defense by a defendant who, as the original aggressor, was only using non-deadly force initially.

 

The threat being repelled must be imminent - a threat of future harm is not enough.

 

108. Battered wife syndrome

 

A very dangerous concept.  It allows a person to claim self-defense to repel an anticipated future attack when such person has suffered so much that she cannot mentally see any way out of the situation any more.

 

Virginia does not allow this defense - but would allow a claim of temporary insanity (as was done in the Lorena Bobbitt case).

 

It in effect allows the victim to be the judge, jury and executioner all in one.

 

109. Duty to retreat

 

Some jurisdictions (not Virginia) require a person to attempt to avoid the use of deadly force in self-defense whenever possible.  Even under this rule, such retreat is not necessary if the defendant is in his own home or if retreat would be dangerous or futile.

 

110. Defense of others

 

Follows the same principles as self-defense.

 

As long as it reasonably appears that the person being defended had the right to use self-defense himself.  You no longer >step into the shoes= of the person being defended.

 

111. Defense of property

 

Only a reasonable amount of non-deadly force is permitted.

 

Virginia prohibits the setting of >spring guns= for that purpose (a Class VI felony).

 

112. Resistance to an unlawful arrest

 

Virginia allows a person to resist an unlawful arrest.  This is a dangerous concept since the defendant has no way of knowing whether an arrest is legal or not. 

 

But only non-deadly force may be used in Virginia.

 

Case #19 - Bell v. Commonwealth, 2 Va. App. 48 (1986)

 

Bell had threatened to kill the decedent only a few hours earlier. He armed himself with a loaded pistol, disregarded the pleas of the decedent and a woman (the subject of the love triangle) to leave them alone.  When they tried to avoid him by moving from their parking space, he aggressively sought them out...and while circling their vehicle with his van as if it were a wagon train, he hurled insults at the decedent and challenged him to do something about it.  When the decedent left his vehicle with his own gun at his side, Bell was seated behind the steering wheel of his van with its motor running.  He easily could have driven off, but did not do so.  Instead he fired at the decedent and killed him.

 

The general rule is that one cannot provoke an attack and then slay his assailant and claim self-defense.  Where the defendant provoked the difficulty, it makes no difference as to what threats were made by the deceased, or what may have been the danger to the defendant at the time he fired the shots.

 

The jury could properly reject his claim of self-defense.

 

113. Infancy as a defense - presumptions

 

0-7: absolute presumption of incapacity to commit a crime

7-14: rebuttable presumption of incapacity to commit a crime

14-18: rebuttable presumption of capacity to commit a crime

 

The juvenile court has power to order a juvenile=s detention indefinitely until his 21st birthday.

 

A child in Virginia can be treated as an adult if he is 14 and is alleged to have committed a felony.

 

114. Intoxication

 

Virginia does not recognize voluntary intoxication as a defense, with one exception.  The planning requirement in Murder-I can be negated by intoxication and the crime thereby reduced to Murder-II.

 

115. Mistake as a defense

 

Generally, mistake of law is no defense, whereas mistake of fact can be.

 

Mistake of fact will not be a defense in strict liability cases.

 

To be a defense, the mistake of fact must be reasonable.

 

Generally, mistake of fact will negate a needed state of mind and thereby negate criminal liability.

 

Thus, A will not be guilty of rape if he reasonably believed that she was consenting.

 

But when the mistake of fact would only lessen the degree of the crime, it will not work as a defense.  (If A intends to steal $150.00 in goods but steals $200 instead, he would be guilty of grand larceny -- or a burglar who reasonably believed it was still >daytime= when he committed the offense, but it was in fact night, would be guilty of a nighttime burglary).

 

Exception: APO - when the defendant reasonably believes the person he is assaulting is a private person, but the victim is in fact a police officer, mistake of fact would be a defense.

 

Mistake of law - can be a defense if the mistake is about an underlying right (a person who believes he has the right to keep something he found after a certain period of time).

 

116. Entrapment

 

In Virginia, the test is subjective -- was the defendant predisposed to commit the crime?

The question is whether the police implanted the idea to commit a crime in an otherwise innocent mind or merely provided an opportunity for an already predisposed person to commit it.

 

Can involve only law enforcement officers.

 

Case #20 - Schneider v. Commonwealth, 230 Va. 379 (1985)

 

Defendant, a heavy social user of marijuana, purchased marijuana and offered to share it with a friend who turned out to be a police informant.  Subsequently, that informant and a police officer posing as both his brother and a serious drug dealer engaged the defendant in a scheme to get his supplier to sell marijuana to them.  Defendant testified that he tried to get out of the deal but that the informant threatened him against doing so.  Defendant continued to help implement the deal and was arrested upon its completion and was convicted of distributing marijuana.

 

The conviction was affirmed.

 

Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for trickery, persuasion or fraud of the officer.

 

Merely affording a defendant the opportunity to commit an offense does not constitute entrapment.

 

Case #21 - Stamper v. Commonwealth, 228 Va. 707

 

Two law enforcement officers persuaded a drug suspect to solicit legal services from the defendant, an attorney.  The defendant mentioned that he had some marijuana which the defendant agreed to take as a retainer.  Defendant was convicted arrested after getting the marijuana from his >client= and attempting to elude the police.

 

Conviction was upheld.  The evidence supports a finding that the officers offered the defendant an opportunity to commit the offense, but also supports the finding that he had the predisposition and propensity to commit it.  There was no entrapment.

Case #22 - Huffman v. Commonwealth, 222 Va. 823 (1981) 

 

Defendant was convicted of criminal solicitation. She wanted to hire a >hit man= to kill her intended victim, who was the wife of the man she was having an affair with.  She approached a man and told him he had been recommended to her and that she needed someone >done away with.= He arranged a meeting with the defendant and then contacted the police.  As per police instruction, he met with the defendant and taped their conversation in which she described her plan, suggesting that the killer hide in the trees near the victim=s house and kill her when she was alone.   The man told her he would contact someone to do the job.  He arranged a meeting with an undercover police officer and the defendant who again described her plan which was also recorded.

 

Conviction affirmed -- not a case of entrapment.

 

116A - Alibi

 

Notice prior to trial is usually required here.  This is not an affirmative defense, so the defendant bears no burden of proof here.

 

117 - Consent

 

Can be a defense, but not to acts which are likely to cause death or serious bodily harm.

 

118. Statute of limitations

 

In Virginia, misdemeanors must be brought within one year of their commission.

 

There is no statute of limitations in Virginia for felonies.

 

119. Double jeopardy

 

A person cannot be tried twice for the same offense.  The issue arises, therefore as to when a person has technically been tried the first time.

 

120. When jeopardy attaches

 

In a jury trial, when the jury is sworn -- in a non-jury trial, when the first witness is sworn.

 

121. Exceptions to the double jeopardy rule

 

a) mistrial in the interests of justice

b) retrial after a reversal and remand on appeal

c) different jurisdictions (state-federal --- not state-municipality)

 

122. Self-incrimination

 

5th Amendment - right to be free from compulsory self-incrimination - may be avoided if the government tries the defendant. Even if acquitted, he can then be forced to testify as he is no longer in danger of prosecution.

 

Government may not comment on a defendant=s failure to testify on his own behalf.

 

123. Transactional immunity

 

Precludes prosection for any offense arising out of a particular transaction or incident.

May also cover a time period.

 

124. Limited use immunity

 

Also called derivative immunity.  A defendant might still be prosecuted but that which he is testifying about (or that to which it leads) may not be used against him (unless the government can show that it would have been uncovered during their normal investigation).

 

Other point

 

Testifying at a grand jury or at a suppression hearing does not waive the privilege at trial.

 

125. Ex post facto laws

 

a) laws which make an act a crime after its commission

b) laws which increase the penalty for a crime after its commission

c) laws which make a crime more serious (as in raising a misdemeanor to a felony)

d) laws which lessen the quality or quantity of proof necessary for conviction

 

Changes that benefit a defendant may be applied retroactively.

 

SEARCH AND SEIZURE

 

CHAPTER 10 - INTRODUCTION AND PARTICIPANTS

 

The due process model - means that the individual=s rights come before the goal of convicting as many criminals as possible.

 

Prosecutorial discretion - allows the prosecutor to nolle prosequi a case in the interests of justice.

 

Ethics - Both prosecutors and defense counsel are considered officers of the court and must therefore act in good faith and not mislead the court.

 

A case in the text (Booth v. Belge - p. 281) suggests that a defense attorney cannot divulge the location of a homicide victim if that would amount to breaking the attorney-client privilege.

 

A serious ethical issue arises when a defense lawyer knows that his client is about to commit perjury. 

 

CHAPTER 11 THE CONSTITUTIONAL ASPECTS OF CRIMINAL PROCEDURE

 

14TH Amendment  - applies the federal procedural safeguards to the states.  This includes virtually all of the rights under the 5th Amendment except the right to indictment or to a jury trial in civil cases.

 

126. The exclusionary rule

 

The government may not used illegally-obtained evidence as evidence of guilt in a criminal trial.  It may be used as impeachment, however.

 

Applied to the states in 1961 (Mapp v. Ohio)...first announced in the federal courts in 1914.

 

This rule does not apply to pretrial hearings, grand jury hearings, sentencing, rebuttal evidence, evidence to which there is an independent source and evidence obtained by non-law enforcement officers.

 

127. Fruit of the poison tree doctrine

 

Evidence to which illegally-obtained evidence leads also cannot be used as evidence of guilt.

 

CHAPTER 12 - SEARCHES, SEIZURES AND ARRESTS

 

128. Privacy protection of the 4th Amendment

 

The 4th Amendment protects not just places, not just persons.  Thus, a place in which a person has a reasonable expectation of privacy becomes what is known as a constitutionally-protected area (such as a public bathroom).

 

Katz v. U.S. (1967) - the electronic invasion of a public telephone booth is considered a 4th Amendment violation.

 

129. Probable cause

 

 

Somewhere between mere suspicion and proof beyond a reasonable doubt.  It is that which would cause a reasonable person to believe.

 

Evidence which is inadmissible at trial can still form the basis of probable cause.

 

Informant=s information - Aguilar v. Texas (1964) - provided a 2-pronged test (the informant had to be shown to be reliable and how he got his information also had to be shown to be reliable) was replaced by the totality of the circumstances test in Illinois v. Gates (1983), although Aguilar=s tests can still be determinative.

 

The informant=s name need not be given in the warrant.

 

Probable cause can be shown by trained animals.  An alert by a trained dog can amount to probable cause.

 

And the act of having a dog sniff a person or thing is not considered a search.

 

An officer who acts in good faith in reliance on a warrant that later proves to be faulty, is conducting a proper search.  But the warrant must appear proper on its face.

 

This good faith exception applies only to warrants, not to warrantless arrests or searches by an officer acting in good faith.

 

130. Overriding rule in search and seizure cases

 

When the officer finds the object in question, was he doing what he had a legal right to be doing?  If so, the search is legal.

 

131. Search warrants

 

Search warrants are always preferred. And courts require less evidence of probable cause when warrants were issued by a magistrate.

 

A warrant requires that probable cause be shown that items related to criminal activity will be found in a specified area.

 

132. Rule of specificity

 

Both as to the items sought and the place to be searched.

 

A street address can be sufficient. Then a particular part of the house (or the entire house).

 

133. Affidavit in support of a search warrant

 

An affidavit, signed by the officer, must establish the basis for probable cause.

134. Execution of the warrant

 

The search may not exceed the scope of the warrant.

 

The right to search a premises does not include the right to search the occupants who happen to be there.  But the occupants may be detained while the search is conducted.

 

Warrants generally must be executed during the day (unless specified for nighttime).

 

They must be conducted within a certain time frame (10 days for federal - 15 for Virginia) or they become >stale.=

 

If probable cause disappears before the search, a warrant will no longer justify a search.

 

>No-knock= warrants can be issued.

 

Otherwise, the police must knock and announce their presence and purpose.

 

Afterwards, an inventory of items must be left at the premises.

 

135. Consent searches

 

Eliminates the need for probable cause.

 

The consent can be limited or revoked.

 

It must be voluntarily given, but there is no requirement (as in Miranda) that the police first inform the person of his right to refuse.

 

Third party consent - ok if the person shares access, control and use of the property.  Consent to search private areas is not valid.

 

Landlords cannot consent to the search of a tenant=s room.

 

136. Plain view

 

The inadvertent sighting of contraband (which clearly is contraband) after the police have invaded a constitutionally-protected area.  If the area is not constitutionally-protected, there is no need for inadvertence.

 

The officer must be in place where he has a legitimate right to be.

 

Moving an item or something near it to gain a better view is not inadvertent.

 

Use of binoculars or flashlights are ok as long as the officer is using them from where he has a right to be.  But it still must be inadvertent under the plain view doctrine.

 

137. Stop and frisk

 

A stop and frisk is considered a search but not as intrusive and therefore not requiring probable cause.  A balance between the right of privacy and the right of the police to safely do their jobs.

 

Terry v. Ohio (1968) - >It is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person=s clothing all over his or her body in an attempt to find weapons is not a search.=

 

The stop and the frisk are separately determined.

 

The police have a right to stop a suspect who is acting suspiciously as long as he has reasonable suspicion based on specific articulable facts that criminal activity is afoot.

 

Once a suspect has been so stopped, the police may conduct a pat-down of the outer clothing of that suspect if he has reasonable suspicion based on specific articulable facts that the suspect is armed with a weapon.

 

Plain feel - If during a patdown of the outer clothing, the officer feels an object, whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect=s privacy beyond that already authorized by the officer=s search for weapons.

 

But the officer cannot manipulate the item through the clothes to gain >reasonable suspicion.= It must be immediately apparent that it is a weapon.

 

137A - Search incident to arrest

 

Chimel v. California (1969) - allows the police to search the area within the defendant=s immediate control for weapons or contraband.

 

Maryland v. Bluie (1990) allows the police to conduct a protective sweep of the defendant=s home to check for persons who may pose a threat to the officers, if the defendant is arrested in the home.

 

When the police arrest the occupant of an automobile, they may search the passenger compartment of that automobile, including the contents of any containers found in that area.

 

138. Open fields - the curtilage

 

Areas which are not protected by the 4th Amendment. Areas outside the curtilage of the home.

 

The curtilage is the living area surrounding the home.  Factors include:

 

A) the proximity of the area to the house

b) the nature and use of the area

c) the attempts by the residents to keep the area private.

 

Other points

 

Border searches - do not require probable cause. No suspicion at all is required.

This applies to both persons and luggage.

 

To conduct a strip search, the customs official must have a >real suspicion= of illegality.

 

To conduct a body cavity search, there must be a >clear indication= of illegality.  This is somewhere between probable cause and reasonable suspicion.

 

Profiles - may be used to establish reasonable suspicion, thereby justifying a Terry search.  Race alone is not sufficient.

 

139. Motor vehicles and roadblocks

 

Because of the mobile nature of autos, a warrantless search of a vehicle is permitted without a warrant if there is probable cause (Carroll v. U.S. - 1925).

 

This authority to search may continue after impoundment (even after the exigent circumstances have disappeared).

 

The search must be limited to areas where the item sought could possibly be found.  And this includes closed containers if the item sought could physically be therein).

 

If the driver is arrested, a search of the car incident to that arrest is proper, but not closed containers (unless there is probable cause to believe that seizeable items are inside).

 

If impounded, an inventory search may be conducted but closed containers may not be opened without independent probable cause.

 

An occupant of an auto may not be searched merely because there is probable cause to search a vehicle (unless there is probable cause to believe that the occupant has hidden contraband on his person).

 

Roadblocks - must be random and reasonable.

 

Discretionary spot checks are unconstitutional (Delaware v. Prouse - 1979) - There must be a reasonable and articulable suspicion of a traffic violation to justify a stop.

 

Random roadblocks cannot be used to justify searching for drugs.

 

140. Inventory searches

 

A car can be impounded only if a less intrusive method for caring for the car cannot be found (such as allowing an accompanying spouse to drive the car home).

 

If the spouse was done simply to justify a search without probable cause, it is improper.

 

Glove compartments and trunks may be searched as well as the contents of closed containers.

 

141 Arrests

 

Whether an arrest in fact occurs is determined by the totality of the circumstances, not by the officer=s intentions or his announcement that the suspect is under arrest.

 

Arrests must be based on probable cause that a felony was committed or that a misdemeanor is being committed in the officer=s presence.

 

Virginia allows an arrest to be made for certain misdemeanors (such as petit larceny).

 

An arrest warrant impliedly permits the officer to enter a defendant=s home to make the arrest, provided there is reason to believe that he is inside.  And search of the areas of the home where he is likely to be is also permitted.

 

142. Miranda

 

The defendant must be in custody and in fact be interrogated for Miranda to apply.

 

Statements made not in response to police questioning are not covered.

 

Exceptions

 

Routine questioning is not covered if the person makes an incriminating statement in response to it.

 

There is no warning requirement in emergency situations when there is not realistic time to do it.

 

Questioning during an investigation before a suspect has been identified is not covered.

 

Questioning must stop if the defendant requests it or that an attorney be present.

 

 

Once he has requested counsel, all questioning from then on must be done only with counsel present.

 

The warnings

 

Need not be given exactly as long as the idea is conveyed.

 

It does not matter that the person in fact knew his rights.  The warnings must still be given.

 

1) the right to remain silent

2) that any statements made can be used against you

3) the right to have an attorney present

4) the right to have an attorney appointed if indigent

 

Waiver - It is up to the government to establish a waiver.  It is never presumed.

Silence never amounts to a waiver.

 

Violation - the statement and any evidence to which that statement leads cannot be used as evidence of guilt (but can be used as impeachment).

 

Other points

 

A coerced confession cannot be used at all (not even impeachment).

 

Electronic surveillance

 

This is an invasion of a constitutionally-protected area (Katz)

 

The Omnibus Crime Control Act of 1968 (federal wiretap act) prohibits the wiretapping of a conversation when the parties to that conversation have a reasonable expectation of privacy.  Evidence obtained as a result of an illegal wiretap is excluded.

 

The police may seek a court order allowing it.  The order must be specific as to time and who it is directed against.

 

The affidavit must state that less intrusive methods have failed or that none are available.

 

Such intercepted communications must if at all possible be recorded.

 

And the interception of irrelevant information must be minimized.

 

Exceptions

 

When one party allows the police to listen in.

When using a cellular phone.

When accidentally overheard by an employee of the communications company

 

 

143 Lineups

 

If a lineup is improperly conducted, it cannot be used at trial -- and neither can an in-court identification if it is the result of a tainted lineup.

 

But a subsequent in-court identification is permitted if there was an independent source for the identification.

 

There is a right to counsel at a lineup or showup only after formal charges have been filed.

 

Lineups cannot be unduly suggestive.  The court will look at the totality of the circumstances.

 

It is not a 5th Amendment violation to require a person to appear in a lineup.  The 5th Amendment applies to statements, not the performance of physical acts.

 

Other points

 

Fingerprinting and the taking of blood samples is are not 5th Amendment violations.

 

The normal drawing of blood is not an improper invasion of privacy (Schmerber v. California - 1966)