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DUI and Gun Evidence Suppression

Getting Evidence Tossed out in a DUI

FAIRFAX PD is going hard on DUIs right now, and have increased arrests with a specialized DUI Task Force.


DUIs arrests can lead to more charges than just drunk driving.  Police often use the DUI to try to find evidence to bring more charges, like possession of guns and drugs.  That's what happened in Mr. Nottingham's case.  What began as a DUI turned into felony gun charges.  Read on.

How Do You Suppress Evidence

Here's some case law for you.

The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures, including unreasonable searches and seizures of their automobiles. U.S. Const. amend. IV; South Dakota v. Opperman, 428 U.S. 364, 367 (1976) (identifying automobiles as "within the reach of the Fourth Amendment"). The Supreme Court has stated that warrantless searches and seizures "are per se unreasonable under the Fourth Amendment -subject only to a few specifically established and well delineated exceptions." Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (quoting Thompson v. Louisiana, 469 U.S. 17, 20 (1984) (per curiam)); see also Megel v. Commonwealth, 262 Va. 531, 534 (2001).  "One such exception to the general rule requiring a search warrant is when an inventory search of an impounded vehicle is conducted in accord with the policy considerations recognized by the United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364 (1976), and Cady v. Dombrowski, 413 U.S. 433 (1973)." Cantrell, 65 Va.App. at 59.

All of this is to say that when a constitutional right has been violated during some type of traffic stop, you can argue that the evidence should be suppressed.

What Happened in the Nottingham Case

After dark on the evening of June 18, 2021, Officer Astin of the Virginia Beach Police Department ("VBPD") initiated a traffic stop of Nottingham on Ferrell Parkway (the "highway") in Virginia Beach. Nottingham parked his black sedan on the shoulder of the highway and exited the vehicle at Officer Astin's command. After Nottingham took a preliminary breath test, Officer Astin placed Nottingham under arrest for driving under the influence of alcohol.

Officer Astin searched Nottingham incident to that arrest and found a single pill in Nottingham's front right pocket. Nottingham informed Officer Astin that he had a prescription for that pill, which Nottingham identified as ten milligrams of Percocet. Nottingham told Officer Astin, "I'm a sickle cell patient. I have S.C. disease." He explained that he kept the Percocet pill on his person in case he had a sickle-cell-induced pain crisis. Officer Astin then told Nottingham, "I won't charge you with it [possession of a controlled substance] if I find the prescription." Nottingham eventually agreed to let Officer Astin retrieve proof of the Percocet prescription from a bag located on the front passenger seat of his vehicle, but Nottingham told Officer Astin that he did not consent to a search of his vehicle.  The police eventually found a gun in the car and charged him with misdemeanor carrying a concealed weapon under Virginia Code 18.2-308.

The cops wanted to keep searching. The Court of Appeals ultimately found that “Officer Astin's conduct and very clear statements demonstrate that he was primarily motivated instead by a desire to search for contraband to determine what charges he could add to the DUI charge for which Nottingham had already been arrested. 

The result:  the gun charges were tossed on appeal.  Yes, the DUI wasn't overturned but some DUIs can lead to more charges.  If you're arrested for any charge, be prepared to fight anything else the prosecutors might want to throw at you.

If you're facing a DUI in Fairfax, Alexandria, Arlington, or any other Virginia Court, CALL TODAY. 

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