circumstances analysis in Virginia

2019“When the factual basis for probable cause or reasonable suspicion is provided by an anonymous informant, the informant’s veracity or reliability, and the basis of his or her knowledge are ‘highly relevant’ factors in the overall totality of the circumstances analysis.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)).

2011Under Gates , the informant’s “‘reliability and basis of knowledge’ ” are still “ ‘highly relevant’ factors in the overall totality of the circumstances analysis.” Jones, 277 Va. at 179 , 670 S.E.2d at 732 (quoting Gates, 462 U.S. at 230 , 103 S.Ct. at 2328 ).

2023However, the “circumstances and factors” the court may consider “are not limited to the legal grounds for divorce” and instead “encompass[] all behavior that affected the marital relationship, including any acts or conditions which contributed to the marriage’s failure, success, or well-being.” Wyatt, 70 Va. App. at 719 (alteration in original) (quoting Barnes v. Barnes, 16 Va. App. 98, 102 (1993)).

2022In particular, subsection (E) requires the court to “consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery,” when determining whether to award spousal support.5 “Thus, even where a court grants a divorce based on a one-year separation, it must still consider any proven fault-based ground in relation to spousal support,” as well as “‘all behavior that affected the marital relationship, including any acts or conditions which contributed to the marriage’s failure, success, or well-being.’” Wyatt, 70 Va. App. at 719 (quoting Ba

2007See Code § 20-107.1(E) (providing that “in determining whether to award support and maintenance for a spouse,” the court “shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including [desertion],” and that “[i]n determining the nature, amount and duration of an award pursuant to this section, the court shall consider” numerous other listed factors, which list does not specifically mention “the circumstances and factors which contributed to the dissolution of the marriage”); see also Gamble v. Gamble, 14 Va. App. 558, 574-77 , 421 S.E

2007See Code § 20-107.1(E) (providing that “in determining whether to award support and maintenance for a spouse,” the court “shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including [desertion],” and that “[i]n determining the nature, amount and duration of an award pursuant to this section, the court shall consider” numerous other listed factors, which list does not specifically mention “the circumstances and factors which contributed to the dissolution of the marriage”); see also Gamble v. Gamble, 14 Va. App. 558, 574-77 , 421 S.E

2011See Code § 20-107.1(E) (requiring the court, when considering whether to award support, to “consider the circumstances and factors which contributed to the dissolution of the marriage”); cf. Cousins v. Cousins, 5 Va.App. 156, 158-59 , 360 S.E.2d 882, 884 (1987) (interpreting identical language in the equitable distribution statute, Code § 20-107.3(E)); Bentz v. Bentz, 2 Va.App. 486, 488 , 345 S.E.2d 773, 774 (1986) (same).

2011See Code § 20-107.1(E) (requiring the court, when considering whether to award support, to “consider the circumstances and factors which contributed to the dissolution of the marriage”); cf. Cousins v. Cousins, 5 Va.App. 156, 158-59 , 360 S.E.2d 882, 884 (1987) (interpreting identical language in the equitable distribution statute, Code § 20-107.3(E)); Bentz v. Bentz, 2 Va.App. 486, 488 , 345 S.E.2d 773, 774 (1986) (same).

2011See, e.g., Maye v. Commonwealth, 44 Va. App. 463 , 605 S.E.2d 353 (2004). 10 “When the factual basis for probable cause or reasonable suspicion is provided by an anonymous informant, the informant’s veracity or reliability, and the basis of his or her knowledge are ‘highly relevant’ factors in the overall totality of the circumstances analysis.” Harris v. Commonwealth, 276 Va. 689, 695 , 668 S.E.2d 141, 145 (2008); see also Illinois v. Gates, 462 U.S. 213, 230 (1983).

2011See, e.g., Maye v. Commonwealth, 44 Va. App. 463 , 605 S.E.2d 353 (2004). 10 “When the factual basis for probable cause or reasonable suspicion is provided by an anonymous informant, the informant’s veracity or reliability, and the basis of his or her knowledge are ‘highly relevant’ factors in the overall totality of the circumstances analysis.” Harris v. Commonwealth, 276 Va. 689, 695 , 668 S.E.2d 141, 145 (2008); see also Illinois v. Gates, 462 U.S. 213, 230 (1983).

2011In light of the fact that the record in this case does not provide a basis of the informant’s knowledge, the question of whether the police officers had probable cause to believe that Byrd was engaged in criminal activity and that contraband would be discovered in his vehicle at the time he was stopped, ought to turn on whether the deficiency of the basis of knowledge is “‘compensated for, in determining the overall reliability of a tip, by a strong showing as to the [unusual reliability of the informant], or by some other indicia of reliability.’ ” Robinson, 53 Va.App. at 738 , 675 S.E.2d at

2011In light of the fact that the record in this case does not provide a basis of the informant’s knowledge, the question of whether the police officers had probable cause to believe that Byrd was engaged in criminal activity and that contraband would be discovered in his vehicle at the time he was stopped, ought to turn on whether the deficiency of the basis of knowledge is “‘compensated for, in determining the overall reliability of a tip, by a strong showing as to the [unusual reliability of the informant], or by some other indicia of reliability.’ ” Robinson, 53 Va.App. at 738 , 675 S.E.2d at

2001Husband correctly cites Aster v. Gross, 7 Va. App. 1 , 371 S.E.2d 833 (1988), for the proposition that marital fault can only be considered in an equitable distribution award when the fault has economic consequences to the parties' marital estate. 4 However, we reject husband's contention that wife's arrest, conviction, and subsequent incarceration had an economic impact on the marital estate. 4 We limit our review to whether marital fault had economic consequences on the marital estate.

2001Husband correctly cites Aster v. Gross, 7 Va. App. 1 , 371 S.E.2d 833 (1988), for the proposition that marital fault can only be considered in an equitable distribution award when the fault has economic consequences to the parties' marital estate. 4 However, we reject husband's contention that wife's arrest, conviction, and subsequent incarceration had an economic impact on the marital estate. 4 We limit our review to whether marital fault had economic consequences on the marital estate.

2023Cf. Whitaker v. Commonwealth, 279 Va. 268, 276 (2010) (considering, in its reasonable suspicion analysis, the suspect’s “unusual behavior in abandoning - 32 - his bicycle,” “seemingly frantic determination to elude the police,” and “holding onto his right jacket pocket as he ran”); Brown v. Commonwealth, 33 Va. App. 296, 308 (2000) (considering, in its totality of the circumstances analysis, that when passed by an officer on a bicycle, the suspect “turn[ed] away and ‘le[ft] very fast’”).

2023Cf. Whitaker v. Commonwealth, 279 Va. 268, 276 (2010) (considering, in its reasonable suspicion analysis, the suspect’s “unusual behavior in abandoning - 32 - his bicycle,” “seemingly frantic determination to elude the police,” and “holding onto his right jacket pocket as he ran”); Brown v. Commonwealth, 33 Va. App. 296, 308 (2000) (considering, in its totality of the circumstances analysis, that when passed by an officer on a bicycle, the suspect “turn[ed] away and ‘le[ft] very fast’”).

2022ANALYSIS The Fifth and Sixth Amendments to the United States Constitution require that “[a] suspect must knowingly and intelligently waive his rights against self-incrimination and to the assistance of legal counsel in order for a confession made during a custodial interrogation to be admissible in evidence against him.” Rodriguez v. Commonwealth, 40 Va. App. 144, 155 (2003).

2021“When a court awards spousal support based upon due consideration of the factors enumerated in Code § 20-107.1, as shown by the evidence, its determination ‘will not be disturbed except for a clear abuse of discretion.’” Chaney, 71 Va. App. at 435 (quoting Dodge v. Dodge, 2 Va. App. 238, 246 (1986)).

2021Whether a portion of property is “curtilage” is determined by a four-part totality of the circumstances test laid out in United States v. Dunn, 480 U.S. 294, 301 (1987): (1) “the proximity of the area claimed to be curtilage to the home,” (2) “whether the area is included within an enclosure surrounding the home,” (3) “the nature of the uses to which the area is put,” and (4) “the steps taken by the resident to protect the area from observation by people passing by.” The circuit court did not reach this issue; however, application of the Dunn factors, to the evidence in the record in the light

2021By contrast, with respect to a monetary award in equitable distribution, Code § 20-107.3(D) provides that “the court has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party.” Code § 20-107.3(E) provides factors for a trial court to consider when determining the amount of any monetary award in equitable distribution. -4- With an award of spousal support, “the law’s aim is to provide a sum for such period of time as needed to maintain the spouse in the manner to which the spouse was accustomed during the marriage, balanced

2020This proffer included allegations to support his claim that wife committed adultery during the marriage. -2- interpretations and legal conclusions de novo.” Navas v. Navas, 43 Va. App. 484, 487 (2004) (quoting Sink v. Commonwealth, 28 Va. App. 655, 658 (1998)).

2020In Virginia, when “a claim for support is made by a party who has been held blameless for the marital breach, the law imposes upon the other party a duty, within the limits of his or her financial ability, to maintain the blameless party according to the station in life to which that party was accustomed during the marriage.” Brandau v. Brandau, 52 Va. App. 632, 637 (2008) (quoting Gamble v. Gamble, 14 Va. App. 558, 573-74 (1992)).

2020This proffer included allegations to support his claim that wife committed adultery during the marriage. -2- interpretations and legal conclusions de novo.” Navas v. Navas, 43 Va. App. 484, 487 (2004) (quoting Sink v. Commonwealth, 28 Va. App. 655, 658 (1998)).

2015Where such a sufficient showing is made, the Court must apply a “totality of the circumstances test” and determine “whether the affidavit with the omitted information would be supported by probable cause.” United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990); see also Barnes v. Commonwealth, 279 Va. 22, 34-35 (2010).

2015Where such a sufficient showing is made, the Court must apply a “totality of the circumstances test” and determine “whether the affidavit with the omitted information would be supported by probable cause.” United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990); see also Barnes v. Commonwealth, 279 Va. 22, 34-35 (2010).

2014“Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the probable-cause decision.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation and internal brackets omitted).

2014When reviewing the validity of a search warrant, the Court applies a “‘totality of the circumstances analysis’ to a magistrate’s consideration of a warrant application.” Cunningham v. Commonwealth, 49 Va. App. 605, 612 , 643 S.E.2d 514, 518 (2007) (citation omitted).

2014When reviewing the validity of a search warrant, the Court applies a “‘totality of the circumstances analysis’ to a magistrate’s consideration of a warrant application.” Cunningham v. Commonwealth, 49 Va. App. 605, 612 , 643 S.E.2d 514, 518 (2007) (citation omitted).

2012The trial court “in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95.” Code § 20-107.1(E). “[W]here there is no bar to the right of spousal support,” a spouse is “entitled to an award of spousal support to the extent the factors in Code § 20-107.1 support[] such an award.” Bacon v. Bacon, 3 Va. App. 484, 491 , 351 S.E.2d 37, 41 (1986).

2012The trial court “in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95.” Code § 20-107.1(E). “[W]here there is no bar to the right of spousal support,” a spouse is “entitled to an award of spousal support to the extent the factors in Code § 20-107.1 support[] such an award.” Bacon v. Bacon, 3 Va. App. 484, 491 , 351 S.E.2d 37, 41 (1986).