2013 New Laws Update For Law Enforcement Prepared by Commonwealth’s Attorneys’ Services Council

1. 2013 New Laws Update For Law Enforcement Prepared by Commonwealth’s Attorneys’ Services Council

2. Selected Court Decisions from June 2012 through May 2013. • Detailed information about 2013 General Assembly legislation is available at: http://lis.virginia.gov • All new laws are effective July 1, 2013, unless passed as emergency legislation.

3. StopsOtey v. CW, 61 Va. App. 346, 735 S.E.2d 255 (2012) • Court upheld traffic stop that led to discovery of marijuana. Officer had a “reasonable, articulable suspicion that appellant’s vehicle had defective equipment” because part of a brake light was out - “defective” under §46.2-1003 - notwithstanding that it otherwise complied with requirement to be visible from 500 feet.

4. RoadblockDesposito v. CW, 60 Va. App. 252, 726 S.E.2d 354 (2012) • “Roadblock jurisprudence does not prohibit all discretion by the field officer but only ‘unbridled’ discretion.” • Court rejected complaint that open-ended time frame (minimum of 30 minutes w/o upper limit and “lunchtime”)afforded the officers too much discretion.

5. Canine Probable Cause Florida v. Harris, 133 S. Ct. 1050  (2/19/13) • U.S. Supreme Court upheld search based on dog alert to drugs and rejected Florida court ruling that a specific checklist of factors must be established when dog expertise is used. • Probable cause is a fluid concept that turns on the assessment of probabilities in the totality of particular factual circumstances; it cannot be reduced to a neat set of legal rules. 

6. Canine Probable CauseFlorida v. Harris, 133 S. Ct. 1050 (2/19/13) • “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” • “A defendant, however, must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”

7. Search Warrant Based On Dog At Front DoorFlorida v. Jardines, 133 S. Ct. 1409 (3/26/13) • On tip, police approached D’s residence with trained dog, who alerted at front door.  Police obtained warrant and found MJ growing. • Fourth Amendment still permits searches of “open fields,” but at residence, and within curtilage, police may only act as licensed by the homeowner.  • Dog sniff exceeds ‘license’ to approach residence and knock at door.

8. Consent to SearchElliott v. CW, 61 Va. App. 48, 733 S.E.2d 146 (2012) • Court refused to suppress evidence based on argument that police stopped D with the intent to ask for consent and that his consent was coerced. • Elliott’s testimony in trial court that he refused to consent, and did not consent, precludes claim that he was coerced to consent.

9. ConsentAmin v. Cnty of Henrico, 61 Va. App. 67, 733 S.E.2d 661 (2012) • Asking to see I.D. during consensual encounter does not convert it into a seizure. • Amin already was parked (not operating his vehicle on a public highway) and was not required to provide driver's license to officers. The request to see Amin’s identification was just that, and his consent was voluntary.

10. Warrantless Search / Exigent CircumstancesWashington v. CW, 60 Va. App. 427, 728 S.E.2d 521 (2012) • Police followed fresh footprints in snow that led from burglarized home to nearby trailer; officers suspected trailer was then being burglarized. • Door to trailer opened upon knocking; no one answered officers’ calls; police entered looking for a burglar. No burglar, but police observed stolen property from the neighboring home. • Warrantless entry upheld on exigent circumstances: not practical to secure warrant if burglar still in trailer.

11. Exigent Circumstances CW v. Turner, No. 2276-12-3 (Va. App. , 5/14/13) (unpublished) • D manufactured and possessed methamphetamine in his residence, where his children resided.  CPS notified narcotics agent that she was going to investigate a complaint. CPS and agent went to residence and circumstances there indicated meth manufacturing.  Agent entered trailer. •  Court upheld entry supported by probable cause and exigent circumstances.  D’s conduct showed intent to thwart law enforcement and, and potentially had children at risk inside the residence.

12. No BAC Per Se Exigent CicumtancesMissouri v. McNeely, 133 S. Ct. 1552 (4/17/13) • U.S. Supreme Court: The fact that a person's blood alcohol level declines until the alcohol is eliminated does not create a per se rule of exigent circumstances. • Circumstances may make obtaining a warrant impractical such that the alcohol's dissipation will support an exigency, but that is a reason to decide each case on its facts.

13. Community Caretaker Exception to Warrant Knight v. CW, 61 Va. App. 297, 734 S.E.2d 716 (2012) ‘Community caretaker’ / ’emergency’ exceptions apply when a warrantless entry is necessary (1) to protect public and police from physical danger, (2) to protect property while it is in police custody, (3) to protect police from disputes involving lost or stolen property. For opening closed container, must be “totally divorced” from criminal investigation.

14. Community Caretaker Exception to WarrantKnight v. CW, 61 Va. App. 297, 734 S.E.2d 716 (2012) Rule applied(Knight): Defendant hit girlfriend, and entered shopping mall to ask security guard (off-duty deputy) to help “calm her down.” D left backpack in mall office. Guard went with D to car but left when police responded. Guard found backpack and returned to advise police “needed to come and take a look at the bag.” Police officer went to office, opened backpack and found concealed weapon. Search was not independent of police investigation and not necessary to protect police or others.

15. Community Caretaker Exception to Warrant CW v. Hudgins: No. 1513-12-1 (Va. App., 1/22/2013)(unpublished) Rule applied(Hudgins,reversing suppression). • Trial court mistakenly limited authority for vehicle impoundment under community caretaker exception “to protect the community’s safety.” • Exception also includes protection of property and against claims for lost or stolen property. Impoundment of a vehicle is reasonable where the driver is taken into custody and has no immediate means to safeguard the vehicle or protect his property.

16. Community Caretaker Exception to Warrant Ross v. CW, 61 Va. App. 752, 739 S.E.2d 910(4/16/13) • Rule applied(Ross): DSS brought police as security for unannounced visit.  D met the DSS worker in yard, became agitated, and left DSS in yard. Police followed D inside home and saw marijuana, various firearms, in plain view.    • Police lacked probable cause to arrest for any crime. There was no evidence of an imminent threat of violence that would constitute an emergency justifying the police entry, or satisfy the community caretaker exception to the warrant requirement.

17. Detention of Occupants During Search Bailey v. United States,  133 S. Ct. 1031 (2/19/13) Rule you know: Michigan v. Summers, 452 U.S. 692 (1981) permits detention of occupants at or immediately outside premises subject to a search warrant. The three rationales of Summers rule: • officer safety, • facilitation of search, and • preventing flight.

18. Detention of Occupants During Search Bailey v. United States,  133 S. Ct. 1031 (2/19/13) • Rule applied: While police prepared to execute search warrant for apartment, D and another man drove away. Detectives followed and stopped car 1 mile away. Pat down turned up key to apartment. • D was too far away to be subject to detention during the execution of the search warrant.  • In closer cases, factors to determine if detention within immediate vicinity include: lawful limits of premises, whether occupant within line of sight, ease of reentry for D. 

19. Good Faith Reliance on WarrantCW v. Becerra-Ochoa: No. 1672-12-2 (Va. App., 2/26/13) (unpublished) • Officer obtained warrant from magistrate with affidavit that checked wrong box re who (officer or CI) had personal knowledge of facts. Court of Appeals ruled that officer could rely on warrant in good faith. No attempt to deceive magistrate, affidavit established who knew what, magistrate did not abandon judicial role.

20. Identification / Suggestiveness Smith v. CW, 61 Va.App. 112, 733 S.E.2d 683 (2012) • Rule you know: Due process issues when “police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime,” Perry v. New Hampshire, 132 S.Ct. 716, 720, (2012). • Rule applied: “Smith’s assertion that his photo stood out because none of the other pictures were elongated does not prove that this innocuous feature suggested to the victim that the long-faced male attacked her” and failed to demonstrate that police “arranged suggestive circumstances” leading the victim to identify him.

21. Miranda ViolationsKuhne v. CW, 61 Va. App. 79, 733 S.E.2d 667 (2012) Rule you know: Missouri v. Seibert, 542 U.S. 600 (2004). If police deliberately employ a strategy to obtain an unwarned confession, then read Miranda rights and get a new confession, it all is suppressed. Rule applied: Defendant walked into police station and produced written note confessing he murdered wife. Officers asked whereabouts of the wife, searched D, and asked if he had written the note. D acknowledged writing note; the police then read Miranda rights; D confessed in detail. Police did not use prohibited “two-step” interrogation.

22. Miranda ViolationCW v. Gatewood, No. 1420-12-1 (Va. App. 1/22/13) (unpublished) • D interviewed by CPS investigator at police HQ. (D arrested and charged 2 months previous and had attorney, not present). • Investigator told D that investigation was civil - not part of the criminal investigation. She said D signed Miranda waiver (not part of record) which lacked indication of affirmative waiver of the right to remain silent or right to counsel. • Investigator gave evasive answer when D asked if statement could be used against him.

23. Miranda Violation CW v. Gatewood, No. 1420-12-1 (Va. App. 1/22/13) (unpublished) • Suppression motion properly granted. • D’s waiver was not knowing, intelligent, and voluntary because social worker appeared to use fraud, deceit, trickery and ambiguity to obtain a waiver. D was led to believe investigator not a government agent and interview and waiver were unrelated to pending charges against him.

24. BradyClaimTuma v. CW, ___ Va. ___, 740 S.E.2d 14 (4/18/13) • D charged with sexually assaulting stepdaughter.  The CW did not disclose that interview with child was recorded until during trial.  (CW previously gave D a written summary of interview).  D asked for new trial or to play entire tape at trial.  D declined court’s offer of an opportunity to listen to the tape and then make a motion to admit the tape after listening to it. 

25. BradyClaimTuma v. CW, ___ Va. ___, 740 S.E.2d 14 (4/18/13) • Conviction affirmed. Commonwealth did not suppress the evidence.  Brady not violated when impeachment evidence is made available to a defendant during trial if the defendant has sufficient time to make use of it at trial.  By failing to request a continuance or even a recess to listen to the tape, the defendant waived Brady argument.  • Reverses Tuma v. Commonwealth, 60 Va App 273, 726 SE2d 365 (June 12, 2012)(en banc).

26. Confrontation / CrawfordRobertson v. CW: 61 Va. App. 554, 738 SE2d 531 (3/19/13)(en banc) Sixth Amendment does not require that everyone involved in the preparation of an exhibit testify as a witness at trial.  Witness testified that she was present and directed, supervised, and observed the creation of the list of stolen items and created the adding machine tape to establish value.  The witness was involved in the analysis and her employee was a “mere scrivener” who simply scanned items and wrote down the results.  Employee not needed. • Rev’d Robertson, 60 Va App 688, 732 SE2d 30 (2012)

27. Fingerprints and Photos SB 847 - Amends §§ 19.2-123 and 19.2-390 • Magistrate may require accused’s fingerprints and/or photograph prior to his release on bail • Accused to go with officer to processing location • Fingerprints / photograph may be taken wherever magistrate located, including at a regional jail

28. More Multijurisdiction Grand Jury CrimesHB 1870 / HB 2248 / SB 938 - Amends § 19.2-215.1 • Receiving $ for procuring(Human trafficking) • Money laundering • Mob crimes • Malicious felonious assault, bodily wounding • Robbery • Felonious sexual assault • Arson (some) • RICO violations

29. Arrest Warrants HB 1763 - Amends §§ 19.2-72 and 19.2-76 • Jail officer at regional jail / jail farm may execute arrest warrant, capias, or summons issued anywhere in the Commonwealth. • Currently only a person with law-enforcement power may do so.

30. Stay Pending Appeal of Bond DecisionHB 1311 / SB 1118 - Amends§§ 19.2-124 and 19.2-132 • Court may stay bail order for “good cause shown” and for so long as reasonably practicable to obtain expedited appeal • but may not grant a stay once the person charged has been released on bail  

31. Stay Pending Appeal of Bond DecisionHB 1311 / SB 1118 - Amends§§ 19.2-124 and 19.2-132 • Also may stay order increasing amount of bond, ordering additional sureties, or revoking bail • for “good cause shown” and for so long as reasonably practicable for expedited hearing

32. Protective Orders Not Stayed On Appeal HB 1643 / SB 1016 - Amends §§ 16.1-106 & 16.1-298 Protective order not stayed if for • violation of an initial protective order, • family abuse protective orders (issued w/family abuse disposition) .

33. PERK Exams / For Incapable VictimsHB 2120 / SB 1006 - New § 54.1-2970.1. • Procedure for P.E.R.K. examination of sexual assault victim incapable of consent/informed decision. • Medical personnel to conduct exam when: • need to act • no legally authorized representative available, and • “capacity reviewer” provides confirmation.

34. Photographs of Incapacitated AdultsHB 2122 / SB 997 - New§ 63.2-1606.1 • Photographs, X-rays, etc of incapacitated adult may be taken without the consent of person responsible as part of medical evaluation of suspected abuse. • Photographs, X-rays, etc may be introduced into evidence in any civil or criminal proceeding.

35. Drone MoratoriumHB 2012 / SB 1331 - Not Codified • 2-year prohibition (to July 1, 2015) on law enforcement use of drones; exceptions for specified emergency circumstances. • Drones are “unmanned aircraft systems.” • Applies only to state/local law enforcement. • Never a “weaponized” state/local drone. 

36. Drone Moratorium Deployment exceptions for: • Amber Alert § 52-34.3 • Senior Alert § 52-34.6, • Blue Alert § 52-34.9 • Search and rescue operation • Not applicable to Va Natl Guard training, or to support damage assessment, traffic assessment, flood stages, and wildfire assessment.

37. Communications InterceptionHB 2266 / SB 1373 - Amend Va. Code §§ 19.2-66 and 19.2-68. • Attorney General may apply for authorization for the observation or monitoring by a sheriff's office of an interception of communications; under existing law the same may be done for a police department of a county or city or for U.S. law-enforcement officers.

38. Nonconsensual Tracking DevicesHB 1981 - Adds new § 18.2-60.5. • Class 3 misdemeanor to place “electronic tracking device” through “intentionally deceptive means” and without consent, … to track the location of any person. • Exceptions for law enforcement, parents, guardians, caretakers, fleet vehicles, and registered private investigator in course of business with property owner’s consent (but not to track person with protective order or to aid in commission of crime)

39. Felony Assault and BatteryHB 1850 / HB 1927 / SB 853 – Amend § 18.2-57 (C) Currently: A&B felony for: Judge, law-enforcement officer, DOC Corr. Off., firefighter etc, while performing duties. Add • Employees of local, regional corr. facilities, • Emergency medical services personnel, • Magistrates.

40. Offenses Committed By Persons in DJJHB 2065 / SB 1033– Amends §§ 18.2-48.1, 18.2-57, 18.2-431.1, 18.2-473.1, 18.2-474, 18.2-474.1, 18.2-475, 18.2-476, and 18.2-477.2 • Makes penalties for offenses committed by persons confined in a juvenile correctional center comparable for certain offenses involving adult prisoners.

41. Felony StalkingHB 2211 – Amends § 18.2-60.3 and § 18.2-308.1:4 Class 6 felony for 2nd offense stalking: when it occurs within 5 years of prior conviction of stalking, and D also convicted in prior 5-year period of (i) assault and battery and etc crimes against same stalking victim (ii) domestic assault, or (iii) violation of protective order.

42. Felony StalkingHB 2211 - Amends Code § 18.2-60.3 and § 18.2-308.1:4 • 3rd offense of stalking under § 18.2-60.3 (A) is a felony. • Protective order entered for stalking is one that prevents lawful purchase / transport of firearm.

43. Impersonating Police OfficerHB 1358 / SB 1128 – Amends § 18.2-174 Current law makes Class 1 misdemeanor to impersonate, falsely assume being, etc, sheriff, police officer, marshal, or peace officer. Bill adds federal law-enforcement officers and any local, city, county, and state law-enforcement officers to the list.

44. Impersonating Police OfficerHB 1955 - Amends §§ 15.2-1612, 18.2-174, and 18.2-174.1 Class 6 felony for 2nd /subseq. conviction: • § 15.2-1612 (Unauthorized uniforms); • § 18.2-174 (Impersonating LEO); • § 18.2-174.1 (Impersonating public safety personnel).

45. Reorganization Of Weapons StatutesHB 1833 • No substantive changes to existing law. • Affirmatively states “provisions of this act are declaratory of existing law.” • Reorganizes existing § 18.2-308, etc., to set out existing law in separate clearly labeled §§. • Updates cross-references.

46. Carrying Concealed Handgun Doulgerakis v. CW,  61 Va. App. 417, 737 S.E.2d 40 (Va. App., 2/5/13) • D informed officer that he had handgun in his closed, latched, unlocked glove box and was convicted of carrying a concealed handgun.  Conviction reversed. • Ct. applied 2010 exception in § 18.2-308 (B)(10): • “any person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.” • “Secured” is not same as “locked” and means:  “in safekeeping or custody” or “well-fastened.” 

47. “Strawman” Gun PurchasesSB 1378 - Amends Va. Code §§ 18.2-308.2:1 and 18.2-308.2:2. Person who engages in the "strawman" purchase of a firearm, where he purchases a firearm with the intent to resell or transport with the intent to resell outside of the Commonwealth to any person he knows is prohibited from purchasing a firearm, is guilty of a Class 4 felony.

48. TextingHB 1907 / SB 1222 - Amends §§ 46.2-868 & 46.2-1078.1 Primary offense. • Traffic infraction, $125 fine (1st), $250 (2d) (current penalties are $20 1st / $50 2d &+) • Enhanced / aggravated reckless driving punishment if texting; includes $250 mandatory minimum fine if texting at the time of the reckless driving offense.

49. Selling Alcohol Without CardingHB 1720 - Amends § § 4.1-304 • Class 3 misdemeanor to sell alcoholic beverages to individual < 21 if the seller does not require bona fide evidence of legal age. • Bona fide evidence: unexpired driver's license, military identification card, passport, unexpired DMV special id card, or any other valid government-issued id card bearing photograph, signature, height, weight, and DOB. • Excludes student identification cards.

50. Felony DUI’s HB 1559 / SB 1272. - Amends §§ 18.2-270, 18.2-271, and 46.2-391. Amended / new § 18.2-270 (C)(2): If previously convicted of any DUI felony, any subsequent violation of §18.2-266 also is a felony: § 18.2-36.1 [DUI manslaughter] § 18.2-36.2 [DUI manslaughter/ motorboat] § 18.2-51.4 [DUI maiming] § 18.2-51.5 [DUI maiming/ motorboat] § 18.2-266 felony