The right question by a defense attorney was the key in the reversal today of a drug possession conviction.
The defendant was in the right rear passenger seat when police in Suffolk stopped a car for a traffic violation and brought a drug dog to the vehicle. The dog circled the car before finally alerting at the driver’s door.
Police searched the vehicle and its other three occupants before finally searching the defendant and finding heroin residue on syringes and a bottle cap.
The prosecution argued that police had probable cause to search the fourth occupant because other possibilities for the location of drugs had been exhausted.
But the defense attorney had asked the dog’s handler if it was possible that the dog had alerted on an old odor and that no drugs were present. The handler acknowledged that possibility, which Justice Cynthia D. Kinser concluded for a unanimous Supreme Court of Virginia meant that police lacked probable cause to search the defendant.
In another criminal case, the court said reducing a sentence to the statutory maximum isn’t enough to cure an order sentencing a defendant to a term that exceeded the maximum penalty.
The defendant was convicted of second-degree murder in 1996 for a 1992 offense, just before the maximum penalty for the crime was increased from 20 years to 40. The jury recommended 25 years, and the trial judge imposed it because neither the prosecution nor the defense caught the error.
Years later, the defendant contended that the sentencing order was void. The trial judge attempted to fix the problem by reducing the sentence to the statutory maximum.
Not good enough, the Supreme Court ruled today and said the defendant is entitled to a new sentencing hearing.
By Alan Cooper