Guns Out for Illegal Traffic Detention

Officers’ testimony about smelling marijuana after a lawful traffic stop was inconsistent and unsupported and police exceeded the lawful scope of the stop when they hauled a passenger out and handcuffed him without first asking him to exit the vehicle; a Norfolk Circuit Court suppresses the guns found on the passenger after he was handcuffed.

The officers’ testimony about the marijuana smell from the car was inconsistent and unsupported by what was discovered in the subsequent search of the vehicle. The officers were unable to agree on whether the smell was burnt or unburnt marijuana, and were unable to localize the smell of marijuana to any of the vehicle’s occupants. Further, a subsequent search of the vehicle revealed only “small pieces” of “suspected marijuana” throughout the vehicle, however, the officers never tested the suspected pieces and their existence was not noted in the officers’ police report.

No smoking devices were recovered from the vehicle and no warrants were issued to any of their vehicle’s occupants for marijuana possession. The court will disregard the officers’ testimony regarding the smell of marijuana, as the only evidence of the odor is the officers’ own inconsistent testimony, and the existence of marijuana is otherwise entirely unsupported by the evidence.

The court agrees with defendant that the manner in which the detention was effected exceeded what was legally appropriate under the circumstances rendering the detention illegal.

Here, the officers had probable cause to stop the vehicle in which defendant was a passenger, based on observation of two equipment violations: a defective license plate light and suspected illegal window tint. The officers were permitted to order defendant out of the vehicle without maintaining an individualized suspicion that he was involved in criminal activity. However, when an officer makes a lawful traffic stop, it is the state’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.

The court recognizes an officer making a routine traffic stop may order a passenger out of the car for safety reasons, even if the officer has no reason to suspect the passenger of criminal behavior. However, the cases are silent with regard to whether an officer may physically remove an individual from a vehicle. Here, the court finds defendant was neither asked nor ordered by the officers to exit the vehicle; rather, two officers physically removed him from the vehicle, placed his hands behind his back and handcuffed him.

The court does not believe an officer’s authority to order a passenger out of a vehicle automatically translates into the forcible removal of that passenger from the vehicle without so much as an opportunity to comply with an officer’s orders. Like the use of handcuffs, the grabbing of an individual’s arms is a complete deprivation of a suspect’s liberty, and must be reasonable under the circumstances. Here, there was no heightened need for officer safety and, absent the odor of marijuana, defendant’s forcible removal from the vehicle and immediate handcuffing were unreasonable under the circumstances.

The court holds the evidence of the two firearms in defendant’s possession must be suppressed. As a result of defendant’s unlawful detention, an officer observed an unidentifiable bulge protruding from defendant’s waistband. The officer had not seen the bulge until defendant was handcuffed. Discovery of the two guns directly resulted from the unlawful detention.

Commonwealth v. Cherry (Fulton) No. CR11-3689, June 12, 2012; Norfolk Cir.Ct.; Mary E. Richardson, Comm. Att’y Office; Mark S. Uhtecht, PD Office. VLW 012-8-086, 11 pp.