July 2019 Second Example Ten-point Answers to Virginia Essay Questions
July 2019 - QUESTION 6 – VIRGINIA BAR EXAMINATION
Bob was killed with a shotgun at his home in Washington County, Virginia, on the evening of April 1, 2019. Two 12-gauge shotgun shell casings were found inside of his home. The next day, detectives from the Washington County Sheriff’s Office learned that Jerry, a convicted felon who works at the local gas station, may have been involved in Bob’s death. The detectives subsequently obtained a valid search warrant allowing them to search Jerry’s residence. The warrant specifically allowed the detectives to search Jerry’s house for a “12-gauge shotgun” and “12-gauge ammunition.”
That evening, the detectives executed the search warrant. When they entered Jerry’s house, they saw a clear plastic baggie containing a white powdery material and a hypodermic needle on his coffee table. Based on their training and experience, the detectives believed that the baggie likely contained heroin and that the hypodermic needle was used to inject the substance. Accordingly, the detectives seized these items. Laboratory testing later revealed that the material in the baggie was heroin.
The detectives found four 12-gauge shotgun shells inside of a small jewelry box in a bedroom in Jerry’s house. They also found a 12-gauge shotgun inside of a closet in the bedroom. Several shirts emblazoned with the gas station’s name and “Jerry” embroidered on the front were hanging in the closet, and two pairs of men’s size eleven tennis shoes were sitting on the floor of the closet.
The detectives arrested Jerry after they searched his home. After the detectives read Jerry his Miranda rights, they asked him several questions about the shotgun in his closet. Jerry told the detectives “he didn’t know what they were talking about.” Jerry, however, later confirmed that the detectives found the shotgun in the closet of his bedroom and that he owned the house. Jerry also told the detectives that the shotgun was “not loaded.” When the police arrested Jerry, he was wearing a gas station shirt with his name on the front, and men’s size eleven tennis shoes. A receipt for the purchase of 12-gauge shotgun shells was found in Jerry’s pocket when he was searched following his arrest.
Jerry was charged with the first-degree murder of Bob, possession of heroin, and possession of a firearm as a convicted felon. At a pretrial hearing, Jerry moved to suppress the heroin and the shotgun shells that were seized from his home, claiming that the seizures of these items violated his rights under the Fourth Amendment of the U.S. Constitution. Although Jerry conceded that the April 2, 2019, search warrant was facially valid, he argued that the warrant did not allow the detectives to seize any heroin or needles from his home. He also argued that the warrant did not allow the detectives to search in places that were too small to contain a shotgun. The Circuit Court of Washington County denied Jerry’s motions. At Jerry’s trial, he moved to strike the evidence against him pertaining to his possession of a firearm charge, arguing that the evidence failed to prove that he possessed the shotgun found in the closet. The Circuit Court denied Jerry’s motion.
|(a)||Did the Circuit Court err by denying Jerry’s motion to suppress the heroin and the hypodermic needle? Explain fully.|
|(b)||Did the Circuit Court err by denying Jerry’s motion to suppress the shotgun shells? Explain fully.|
|(c)||Did the Circuit Court err by denying Jerry’s motion to strike the evidence pertaining to his possession of a firearm charge? Explain fully.|
July 2019 - QUESTION 6 – EXAMPLE ANSWER #1
(a) The court did not err in denying Jerry’s motion to surpress the heroin and hypodermic needle because such items were in the officer’s plain view when they executed the validly issued search warrant of Jerry’s home. The Fourth Amendment of the US Constitution protects citizens from unreasonable search and seizures in violation of their reasonable expectations of privacy. The Fourth Amendment generally requires that officers obtain a validly issued search warrant from a magistrate before searching an individual’s home. Items seized in violation of the Fourth Amendment cannot be used as evidence against the defendant and should be surpressed by the court. Here, the officers executed a validly issued search warrant, and they were authorized to search Jerry’s home for a 12 gauge shotgun and 12 gauge shotgun ammunition. However, illict items in plain view during the execution of a search warrant may be seized even if not named specifically in the warrant. Under the plain view doctrine, an officer may seize items which are in plain view if their illicit nature is readily ascertainable and the officers did not need to move or disturb the objects to discover them. Here, the officers were authorized to enter Jerry’s home pursuant to the warrant. They were authorized to seize the needle and heroin because such items were in plain view on the coffee table, the officers did not need to move or disturb any items to see the needle and heroin, and based on their knowledge and experience as officers, they had probable cause to believe that such items were illicit in nature in that they were drugs and drug paraphranelia. Thus, while the heroin and needle were not specifically named in the warrant, they were validly seized under the plain view doctrine exception to the Fourth Amendment, and the court was correct to deny Jerry’s motion to surpress the heroin and needle.
(b) The court did not err in denying Jerry’s motion to surpress the shotgun shells because the officers did not exceed the scope of the warrant by searching the small jewelry box in Jerry’s home. When a search warrant authorizes officers to search for specific items within a home, they are authorized to search containers and places within the home in which such items could reasonably be discovered. For instance, had the search warrant named only the gun, the officers would not be able to search a small jewelry box because a gun could not reasonably be discovered in a box in which it could not physically fit. Here, however, the warrant named both shotgun ammunition (shells) and a shotgun. Thus, the officers were permitted to search in containers or other areas of the home, like the closet, in which such items could reasonably be concealed. While Jerry argues that the warrant only gave the officers permission to search places that could fit a shotgun, the warrant clearly states both ammunition and a shotgun. Thus, the officers did not exceed the scope of the warrant in violation of Jerry’s Fourth Amendment rights by searching the jewelry box, because the shells could reasonably be concealed there.
(c) The court did not err in denying Jerry’s motion to strike the evidence as to the felon in possession of a firearm charge because a jury could conclude based on the evidence presented that Jerry was in constructive possession of the firearm in his closet. To present a prima facie case of possession of a firearm by a convicted felon, the Commonwealth must prove that the defendant is a convicted felon who is not permitted to possess a firearm, and that he possessed the firearm. Possession can be actual or constructive. Actual possession would be physical possession, like Jerry holding the gun. Constructive possession is when one exercises dominion and control over the weapon. Here, a jury could conclude that, based on the evidence presented, Jerry was in possession of the firearm because it was found in his bedroom closet which he does not appear to share with anyone else. Jerry was arrested while wearing shirts that bore his name, like the shirts that were seen in Jerry’s closet, and while wearing size 11 shoes, like the ones found in his closet. While such evidence is circumstantial, it lends itself towards proving that the closet was used by Jerry and not someone else would could possibly possess the shotgun. Further, the receipt showing the purchase of 12-gauge ammo for a shotgun supports the same. Thus, the court did not err in denying Jerry’s motion to strike the evidence because the commonwealth has presented a prima facie case of possession of a firearm by a convicted felon.
July 2019 - QUESTION 6 – EXAMPLE ANSWER #2
6a. The Court did not err in denying Jerry’s motion to suppress the heroin and hypodermic needle because they were properly seized under the plain view doctrine.
The Fourth Amendment protects people from unreasonable search and seizure. Under the exclusion rule, if a search or seizure is unreasonable, the fruits of that search or seizure will be suppressed in a subsequent prosecution of the defendant on the basis of the illegally obtained evidence. In order to search a person’s home, police must obtain a valid search warrant. A search pursuant to a valid warrant is presumptively reasonable. The warrant must describe with some specificity what items the police are searching for, and police cannot search in places where the items on the search warrant could not be found. However, police do not have to turn a blind eye when they come across illegal items while they are in a legal vantage point. Under the plain view doctrine, police are allowed to seize any item that is clearly illegal and subject to seizure while legally executed a valid search warrant, provided they come across it by chance while looking somewhere they are allowed to look. The item must be illegal on its face. This includes drugs and drug paraphernalia that an officer, based on their knowledge and experience, reasonably believes are illegal drugs.
Here, police were legally in Jerry’s home while executing a search warrant for the shotgun and ammunition. They came across the baggie containing white powder and the needle legally because it was in plain view on the coffee table. Since the items were in plain view, and the officers knew them to be illicit drugs beased on their experience, it was appropriate for them to seize the drugs and needle while executing the search warrant.
Thus, The Court did not err by denying Jerry’s motion to suppress the heroin and needle.
6b. The Court did not err by denying Jerry’s motion to suppress the shotgun shells because the police were acting within the scope of the warrant when they discovered them.
As discussed above, police are permitted to search only where the items listed in the warrant may be found.
Here, the warrant authorized the police to search for a “12-gauge shotgun” and “12-gauge ammunition.” Ammunition is small, so it could be hidden in nearly any location. The ammunition fit inside the small jewelry box, so it was appropriate for the police to search for the ammunition inside. Jerry’s argument that they could not search the jewelry box because it could not hold a shotgun fails because the search warrant included the ammunition. If the warrant had been solely for the shotgun, then it would be illegal for the police to search inside the jewelry box, since the gun could not be found there. That is not the case here.
Thus, since the warrant included the 12-gauge ammunition, it was legal and reasonable for police to search for the ammunition inside the jewelry box, and the Court did not err in denying Jerry’s motion to suppress the shells.
6c. The Court did not err by denying Jerry’s motion to strike the evidence pertaining to his possession of a firearm charge because there is sufficient evidence to establish his constructive possession of the shotgun.
To sustain a charge of possession of a firearm, the Commonwealth must show that the defendant possessed the firearm. Possession can be actual or constructive. Where a defendant does not have a firearm on his person, constructive possession can be shown where other circumstances show that the defendant is in control of the firearm. At trial, the Commonwealth must prove possession beyond a reasonable doubt. In response to a motion to strike evidence, the standard is only that there must be a factual basis that supports the charge, not that a conviction is inevitable.
Here, the shotgun was found in a closet. Jerry admitted to police that the closet where the shotgun was found was in his bedroom and that he owned the house. Further, the closet held shirts with the name “Jerry” embroidered on them, indicating that the contents of the closet were his. Further evidence that the items in the closet were his because he was arrested wearing a shirt just like the ones in the closet, as well as shoes of the same size and type of those in the closet. While mere possession of the home may not be enough to show constructive possession of everything inside, the evidence showing that he clearly kept his personal possession in the closet where the shotgun was found is strong circumstantial evidence that he possessed the shotgun.
This, since the evidence shows that the contents of the closet belong to Jerry, there is sufficient evidence to support a charge of possession of a firearm against Jerry, and the Court did not err by denying Jerry’s motion to strike the evidence.