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Criminal cases divide court

The Supreme Court of Virginia split sharply today in deciding three criminal cases – one affirming the procedure in state law for submitting certificates of analysis at trial, a second upholding admission of the items seized in a search under the “good faith” exception to the Fourth Amendment, and the third reversing a drug conviction that stemmed from the “plain feel” of capsules in the defendants pocket.

In Magruder v. Commonwealth, consolidating three cases, the court said the failure of the defendants to subpoena the technician who prepared the certificate amounted to a waiver of the constitutional right to confront the defendant articulated in Crawford v. Washington, 541 U.S. 36 (2004). The dissenters, Justice Barabara Milano Keenan, Chief Justice Leroy Rountree Hassell Sr. and Justice Lawrence L. Koontz Jr., responded that the waiver of a statutory right under Code § 19.2-187.1 could not be extended to a wavier of the Sixth Amendment right to confrontation.

In Adams v. Commonwealth, the same justices dissented to the court’s holding the “good faith” exception excused the failure to specify in the search warrant affidavit that the defendant lived in the house that was the subject of a search for a murder weapon. The affidavit was detailed in other respects, and it could be read without realizing that it did not mention that the defendant lived in the home, Justice Cynthia D. Kinser wrote for the majority.

The dissenters responded that the affidavit should have been seen as defective by any properly trained police officer because it did not mention any particular suspect or state any connection between the defendant. Justice Kinser also wrote the majority opinion in Magruder.

In Cost v. Commonwealth, Justice Koontz wrote that the “feel” of the capsules in a pat-down of a passenger in an automobile was not enough for a policeman to remove them from the defendant’s pocket. Justice Donald W. Lemons, joined by Justice Kinser, countered the “feel,” bolstered by the defendant’s furtive gesture toward the pocket and the policeman’s training, provided the probable cause required for the search of the defendant’s pocket.

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