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Dying declarations and warrantless searches

The Virginia Court of Appeals today rejects constitutional challenges to two convictions, holding in one case that a dying declaration is an exception to the Confrontation Clause and finding in the other an exception to the recent U.S. Supreme Court opinion ruling that the arrest of a driver generally does not authorize the warrantless search of his vehicle.

In Satterwhite v. Commonwealth, the victim in Norfolk was covered in blood from three bullet wounds to the chest and one to the head when he told his girlfriend, a dispatcher and police that the defendant had shot him.

The injuries were serious enough that the victim must have thought death was near, even though he survived six weeks, Judge D. Arthur Kelsey wrote for the appellate panel. The Confrontation Clause argument failed because a dying declaration was well recognized as an exception to both the hearsay rule and the Confrontation Clause at the time the Bill of Rights was adopted, Kelsey said.

In the second opinion, also by Kelsey, the same panel distinguished Armstead v. Commonwealth from the 2009 U.S. Supreme Court decision in Arizona v. Gant. The high court rejected the holding of many state appellate courts, including Virginia’s, that police could search a vehicle with no suspicion of criminal activity following the arrest of a recent occupant.

The Supreme Court said, however, that a warrantless search is permissible if it is it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In this case, a Newport News police officer arrested the driver and searched the car after the driver was unable to provide a driver’s license or registration and the officer was could not verify that the driver had a license in Virginia or the District of Columbia, as the motorist claimed.

The policeman said he hoped to find identification in the car. He did, along with cocaine and marijuana. The circumstances the police officer confronted were squarely within the exception articulated by the Supreme Court, Kelsey said.
By Alan Cooper

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