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A good day for criminal defendants

A narrow majority of the Supreme Court of Virginia failed today to find a “meaningful distinction” in recently decided cases involving a folded dollar bill and hand-rolled cigarettes.

Those cases were among seven in which defendants prevailed.

The bills in Snell v. Commonwealth, decided by published order today, and Grandison v. Commonwealth, decided last June, both contained drugs.

Snell’s bill, in the description of dissenting Justice Donald W. Lemons, was “tightly folded into a square measuring 1 inch by 3/4 inch.” Grandison’s bill was in an “apothecary fold,” folded three times lengthwise with the ends folded toward the middle.

The majority in both cases said police have no authority to seize “legal material with a legitimate purpose.” The same justices – Lemons, A. Steven Agee and Cynthia D. Kinser – dissented in both cases and contended in Grandison that “the intentional manipulation of an otherwise legitimate object” could provide probable cause for seizing an item.

In Buhrman v. Commonwealth, the majority relied on Brown v. Commonwealth, the 2005 case that ruled that a partially burned, hand-rolled cigarette in the hand of a man asleep in a car was not enough to justify seizure of the cigarette and arrest of the man.

Police tried to distinguish Brown from the circumstances in Buhrman in which a woman staggered and almost fell asleep at a drink machine in a convenience store. Fearing that she was intoxicated, a policeman followed her to her car and saw hand-rolled cigarettes in the door of the vehicle when she opened it to retrieve her identification.

The policeman said she noticed a “faint odor” and the “coloration” of the cigarettes but did not further describe the odor or the color. No different from Brown, a unanimous decision, Justice Lawrence L. Koontz Jr. wrote for the majority. The dissenters, Lemons, Kinser and Justice S. Bernard Goodwyn, said they would have found that “behavior reasonably associated with intoxication, the absence of alcohol and the presence of hand-rolled cigarettes with peculiar color and odor” ample probable cause for arresting the defendant.

In the other criminal cases, the court:

- Held that mere possession of a controlled drug does not “give[] rise to an inference that the defendant was aware of its character.” Young v. Commonwealth involved a prescription pill bottle found in a woman’s purse. The bottle was in the name of another woman and did not contain prescription medicine of the type listed on the bottle.

The owner of the bottle said the defendant had retrieved it for her after she left it in the car and produced prescriptions for the drugs found in the bottle.

- Ruled, with three justices dissenting, in McCain v. Commonwealth that a policeman lacked the authority to pat down the passenger in a vehicle that was stopped for a traffic violation in an drug-trafficking area of Danville at 3 a.m. The dissenters said those facts, plus a brief stop by the car at the home where the policeman knew a drug transaction had occurred months earlier were enough for a pat-down to ensure the officer’s protection.

- Affirmed in Robertson v. Commonwealth the Virginia Court of Appeals holding that neither exigent circumstances nor facts justifying a protective sweep excused the warrantless, forcible entry into a home after the only occupant of the residence had been arrested outside.

- Ruled in Jay v. Commonwealth that the court of appeals has been too strict in using Rule 5A:20(e) to dismiss petitions for appeal by finding that defendants have not been specific enough in providing authority to support their legal arguments.

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