Decades Of Successful Representation

Virginia Defendant Unsuccessfully Appeals Firearms Conviction

On Behalf of | Sep 8, 2022 | Weapons Offenses

In a recent opinion on a Virginia firearms case coming out of a Virginia appeals court, the defendant appealed his conviction of possession of a firearm after conviction of a nonviolent felony. On appeal, the defendant argued that the trial court erred in denying his motion to suppress evidence found during a 2019 search of his vehicle. The defendant claimed that Code §4.1-1302(A), which took effect in 2021, applied retroactively and rendered the evidence seized in 2019 inadmissible as evidence against him in his 2021 trial. Examining the evidence, the court of appeals disagreed, and affirmed the original conviction.

Facts of the Case

According to the opinion, on November 15, 2019, an officer of the City of Newport News Police Department stopped a sports utility vehicle because it had an expired registration. The defendant was the sole occupant of the vehicle, and while speaking with the defendant, the officer noticed the odor of marijuana coming from the car. Based on the odor of marijuana, the officer performed a search of the vehicle and subsequently found a revolver. The defendant admitted that the revolver was his. As the defendant had a prior conviction for possession of cocaine, he was then arrested on a warrant charging him with possession of a firearm after conviction of a nonviolent felony. He was indicted for the offense in 2020.

In August 2021, the defendant filed a pretrial motion to suppress evidence. He asserted that a new statutory provision, which had taken effect earlier in 2021, rendered the search of his vehicle due solely to the odor of marijuana unlawful and, consequently, rendered the firearm and his related statements inadmissible at trial. The defendant argued that the new law was procedural and therefore applied retroactively. The trial court held that the statute was not retroactive and denied the motion to suppress. Following the court’s decision, the defendant entered a conditional guilty plea reserving his right to appeal the suppression ruling. The court found the defendant guilty and sentenced him to five years in prison with three years suspended.


The Decision

On appeal, the defendant argued that the trial court erred in denying his motion to suppress evidence, contending that the court improperly applied statutory retroactivity principles. The appeals court found that when challenging the denial of a motion to suppress evidence on appeal, the defendant bears the burden of establishing that a reversible error occurred. The appeals court opinion establishes that at the time of the search that produced the evidence in question, there was no statute in effect. The court then goes on to point out that the usual rule regarding a new statute is that legislation is prospective only.

As a result, a statute is retroactive only if the legislature includes an express provision or other clear language indicating that it applies retroactively. Alternatively, the court holds that barring clear language in a statute resolving whether it is retroactive, it may be determined to operate retroactively if it affects only remedial or procedural rights and no substantive or vested ones. In examining the legislative intent behind the statute, the appeals court found that if the legislature had wanted the remedy to apply retroactively, it could have said so explicitly or provided more generally that exclusion was required for “evidence obtained in such a manner” (based on odor). The appeals court held that therefore, as the statute in question was not retroactive, and there was no such statute in effect at the time of the search, the trial court did not err in denying the defendant’s motion to suppress.

Are You Facing Criminal Firearms Charges in the Commonwealth of Virginia?

If you are facing charges for a firearms crime in Virginia, call our office at Robinson Law, PLLC. We understand that being accused of a crime can be incredibly daunting, which is why we are committed to standing by your side throughout every step of your case. For high-quality, aggressive representation that you can trust, call us today for a free and confidential consultation at 703-542-3616.