Carlson v. Commonwealth (P)

The trial court erred in not suppressing evidence obtained in an unlawful search of the defendant’s residence. Therefore, his convictions for manufacturing marijuana and misdemeanor obstruction of justice must be reversed.

The government lacked an independent source for evidence obtained pursuant to the warrant. A detective at the defendant’s trailer made his own observations but was there solely because he’d been called there by officers who conducted an unlawful search by violating the curtilage of each residence in the area. Because of the direct connection between the illegal search and the detective’s presence, it can’t be said that the illegal search had no effect in producing the warrant. Nothing occurred to remove the taint of the original illegality, and the record doesn’t support the Commonwealth’s argument that the evidence would ultimately have been discovered by lawful means.

On remand, the Commonwealth may elect to retry the defendant, as the evidence presented at trial was sufficient to support conviction. He possessed more than 150 marijuana plants, a large amount of cash in various denominations, a digital scale, an AK-47 with extra ammunition, a surveillance camera, and a police scanner. A second trial would not violate double jeopardy.

Reversed, vacated, and remanded.

Carlson v. Commonwealth (P), No. 2058-17-1, Feb. 12, 2019. CAV (AtLee) from Chesapeake (Lowe).



Categories: Court of Appeals of Virginia, Opinions, Published

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