Virginia Lawyers Weekly VA Lawyers Weekly
During a traffic stop based on the size of the defendant’s car air freshener, officers found a substantial amount of drugs, hundreds of dollars in loose cash, a loaded gun – and the defendant’s toddler.
Background
In 2013, Officer R. Dalton initiated a traffic stop based on an air freshener dangling from the rearview mirror of the car driven by Appellant Javonte Holloway. In the proceedings below, Dalton testified that he pulls cars over whenever he sees a “dangling object” that appears to be about the size of an index card, which is large enough to obscure the driver’s view under Code § 46.2-1054. During the traffic stop, Dalton observed Holloway’s two-year-old son in the back seat.
When the front-seat passenger opened the car’s glove box to find the vehicle’s registration, Dalton detected the odor of marijuana and subsequently searched the car. The search yielded a large quantity of narcotics. In the center console, officers found marijuana wrapped in a summons bearing Holloway’s name, 25 glassine envelopes of heroin, five oxycodone tablets, 50 oxycodone pills, three alprazolam tablets, and three methamphetamine capsules. In the car’s trunk, Dalton located packaging material, a digital scale, and ammunition. A loaded handgun was in the driver’s side door, and Holloway admitted he did not have a concealed weapons permit. He had $716 loose cash on his person. At trial, an officer testified that this evidence was consistent with drug distribution.
Holloway argued that the Commonwealth failed to prove felony child neglect because the evidence showed that the child was belted into the back seat and did not have access to either the drugs or the gun. The trial court denied Holloway’s motion to strike, finding:
“This is a car registered to him. He’s driving it. There is a traffic ticket right next to him crumpled up, issued facially to him. He is right next to, within a half an arm’s reach of, a gun that’s got a bullet in the chamber. He is within a wrist’s reach of a pharmacy of illegal substances. He’s … making furtive movements…. His child is in the back seat of this illicit mobile pharmacy. That, in the court’s opinion, exposes this child to drug dealing, to the – as the court of appeals has said, where there are guns there are drugs – or where there are drugs there are guns. And exposing a child, who’s completely helpless, he is strapped in and immovable in a car seat, indeed constitutes, in the court’s opinion, or at least gives probable cause for a reasonable prima facie case of child abuse and neglect, in terms of exposing the child to unreasonable risk. Not of ingesting the substances, not of pulling the trigger of the gun, but being in the middle of drug deals.
“My sense is that a man who feels that there is enough danger that he’s going to carry a loaded weapon within arm’s reach with a bullet in the chamber believes he is engaging in dangerous activity, or he wouldn’t be armed to that immediate extent…. My sense is that Mr. Holloway is never off duty as a drug dealer…. It’s a mobile … drug house. And into this drug house environment he introduces his little child.”
Holloway unsuccessfully challenged his convictions in the court of appeals, and this appeal followed.
Dangling object
The traffic stop that led to Holloway’s conviction was reasonable. Dalton suspected that the object hanging from Holloway’s rearview mirror was large enough to obscure the driver’s view. Accordingly, the logic in Mason v. Commonwealth, 64 Va. App. 292 (2015), applies here. The trial court could conclude from the fact that the tag was large enough to catch Dalton’s eye that he could have reasonably concluded that it was in violation of Code § 46.2 1054.
Child neglect
This court rejects Holloway’s contention that the trial court adopted a per se rule that the child’s mere presence in the vehicle was sufficient for a conviction. When viewed in its totality, the evidence presented more than merely a child in the presence of drugs and a gun. The court has previously held that reckless disregard for human life may be found when the offender either knew or should have known that his wrongful conduct subjects a child to a substantial risk of serious injury or death.
In Jones v. Commonwealth, 272 Va. 692 (2006), this court upheld a conviction for felony child neglect in part based on the child’s proximity to drugs but also on the fact that the defendant routinely sold heroin from her apartment while the child was present. As in Jones, the totality of the evidence here supports the trial court’s finding that Holloway was always “on duty” in a mobile drug house and always ready to sell drugs, regardless of the presence of his child in the car. Thus, the court affirms his conviction for felony child neglect, based on the substantial risk of serious injury to the child from the dangers inherent in the illicit drug trade.
Dissent
(Goodwyn, J.) I respectfully dissent regarding the ruling on Holloway’s felony child neglect charge. Unlike the apartment in Jones, in this case there is no evidence that Holloway had sold drugs out of his car or that he intended to do so. In other words, the evidence is not sufficient to prove that Holloway was always “on duty” or that his vehicle was used as a “mobile drug house.” Therefore, I would reverse the conviction for felony child neglect.
Holloway v. Commonwealth, Record No. 170258, Apr. 12, 2018. SCV (per curiam), from CAV. VLW No. 018-6-030, 10 pp.
