Richmond judge suggests police retrain on constitutional search protections

Judge David M. Hicks grew frustrated after a string of six gun possession cases were withdrawn by the commonwealth’s attorney, who explained that the cases had “constitutional and evidentiary issues.”

“I’ve seen a few too many of these cases today,” Hicks said in comments directed at Assistant Commonwealth’s Attorney Nelly Black.

“Looks like we’ve got a scorecard and certain people are getting their matters dismissed,” Hicks said. “Hopefully that will kick off some training, or other discussions will be had.”

The Fourth Amendment protects Americans against unlawful search and seizure. Evidence gathered by an unlawful search can be challenged if a defense attorney successfully argues that the officer violated protections enshrined in the Constitution.

Hicks praised Black for responsibly dismissing the cases, but also asked the prosecutor to review and see if any of the same actors, meaning police officers, were involved in the dismissed cases, and to relay his concerns to “the proper individuals.”

“I’m sure the Commonwealth will have the proper discussion to make sure that if it’s an issue of constitutional propriety, we can make sure the proper individuals know, so that the proper actions can be taken,” Hicks said.

The cases dismissed all involved guns. In one case, which was recounted by Black in the courtroom, a defendant was smoking a joint on a street corner in Shockoe Bottom when he was approached by police officers.

The officers asked him if he had a firearm in his bag, to which he replied that he did. He was then charged with having a concealed firearm without a permit, a misdemeanor offense with a maximum penalty of 12 months in jail.

Cody Villalon, the defendant’s attorney, said it’s common for him to defend clients whose interactions with police are triggered by minor civil offenses, like smoking marijuana in public.

“It’s not a thoughtful, targeted approach,” Villalon said. “They find these non-jailable infractions, search people or detain people ... and then hope that they find guns or drugs.”

Interpreting the protections offered by the Fourth Amendment is often left up to judges. Currently, the standard is that a police officer should have a “reasonable, articulable suspicion” to conduct a search. Prosecutors will argue that defendants voluntarily incriminate themselves, while defense attorneys counter that very little feels voluntary to a young man surrounded by police officers.

Defense attorneys can file what is known as a “motion to suppress” on evidence that might have been gleaned in violation of the Fourth Amendment. The motion requires a judge to determine if an officer acted improperly.

In 2022, Virginia’s Court of Appeals found that a motion to suppress was justified in relation to a search by two Richmond police officers who searched a man’s car after he failed to fully stop at a stop sign. Despite the search turning up cocaine in the car, the court ruled that the officers had “exceeded the permissible scope” of their duties.

Other Virginia courts have ruled differently, finding that searches were lawful if the butt of a gun was visible or if defendants were “acting nervously.”

The six cases withdrawn Tuesday were charged by three different RPD officers, each of whom was listed on two cases. All six defendants were young Black men.

Police spokesperson James Mercante said the officers involved in Tuesday’s dismissals were routine patrol officers and not part of any tactical unit. Mercante said every Richmond police officer receives Fourth Amendment training, that officers are working in good faith and that dismissals are not unusual.

“There are nuances in the quick decisions in real time for the approach, encounter, detainment, pat-down, and if necessary, search of an armed person which can lead to possible confiscations of illegally possessed firearms,” Mercante said. “The subtleties of these real-time good faith interactions, when reviewed later in the criminal justice process, absent the uncertainty and hazard of dealing with armed individuals, may result in changes to/or dismissal of charges.”

Public defender Rebecca Pensak was representing many of the defendants in court on Tuesday. Pensak says she has seen many constitutionally questionable searches tied to the Richmond Police Department’s redoubled effort to fight gun crime in Shockoe Bottom.

From what she has seen in charging documents, Pensak said that initiative involves police officers approaching young men outside of bars and restaurants, asking them if they have guns, and then pursuing misdemeanor charges. Often the defendants are Black, she said.

“If you don’t live in certain neighborhoods in Richmond, you don’t even know it’s happening. But it is, extremely, happening. And, if anything, it’s ramping up,” Pensak said.

Shockoe Bottom has been an area of focus for police since at least last year, when Police Chief Rick Edwards said he was concerned that the combination of nightlife and firearms primed the neighborhood for a mass shooting event. His briefing came shortly after a mass shooting outside a nightclub in Birmingham, Alabama.

“That’s the kind of thing that concerns me that could happen in Shockoe Bottom, where you have multiple people walking around with firearms, and multiple people ... partaking in alcohol. It’s just a recipe for disaster, so we flooded that zone,” Edwards said.

Pensak and other public defenders appreciate Judge Hicks’ interest in enforcing constitutional protections. She said it could be informed by Hicks’ time as Richmond’s commonwealth’s attorney, a title he held from 1993 to 2005.

“Judge Hicks is a proponent of the Fourth Amendment,” Pensak said. “Not everyone is like that, unfortunately.”

Villalon said the same.

“These other courts, whatever the officer says, is just viewed as the gospel,” Villalon said. “Judge Hicks looks at these issues skeptically, and he holds them to a constitutional standard.”

Richmond’s current Commonwealth’s Attorney, Colette McEachin, said her office is relaying its concerns to patrol officers.

“I’m pleased that Judge Hicks recognized that my office properly exercised its prosecutorial discretion to nolle prosse cases that had a constitutional or evidentiary issue,” McEachin said. Nolle prosse is the legal term for a case that is dropped by the prosecution.

McEachin, who is running for reelection this year, said prompt and thorough explanations for case dismissals are the best way to prevent similar situations from occurring in the future.