Virginia Lawyers Weekly VA Lawyers Weekly
Where a patrol officer had probable cause to stop a vehicle after observing the commission of multiple traffic infractions, and had probable cause to extend the stop and search the vehicle, as well as its occupants, after smelling marijuana the firearms, drugs and money recovered did not need to be suppressed.
Background
On Dec. 30, 2018, Christian Paulino, a patrol officer with the Newport News Police Department, was on patrol in the City of Newport News when he observed a black Volkswagen fail to stop before the solid white line at a traffic signal at approximately 3:42 a.m. Latoya Patrice Carter was driving the vehicle and Marcus Troy Moody was a passenger.
After observing this infraction, Paulino started following the vehicle and observed the vehicle follow another vehicle too closely, swerve and nearly sideswipe a parked vehicle. Paulino then activated his lights to initiate a traffic stop of the vehicle, He then observed Moody leaning over to the driver’s side multiple times and ducking down. Paulino approached the vehicle and smelled marijuana odor.
Paulino waited for back-up and then began his search. After informing Moody that he smelled marijuana order coming from Moody’s person, Paulino searched Moody and found a cellphone, cologne and $3,913.30 in cash. Paulino’s search of Carter did not uncover any contraband. Carter initially told Paulino that she and Moody had come from a club, but later clarified that they were at a house.
Paulino then conducted a search of the vehicle and found a loaded firearm magazine, a fully loaded Glock .40 caliber handgun with an extended clip, a Glock nine-millimeter handgun with one bullet in the chamber and a bag he suspected contained crack cocaine. No marijuana was found.
Carter and Moody were charged with conspiracy, possession with intent to distribute, possession of a firearm and possession of a firearm in furtherance of a drug crime. They now move to suppress the evidence uncovered during what they contend was an illegal search and seizure.
Analysis
As an initial matter, the government met its burden of establishing the occurrence of several traffic infractions sufficient to justify a traffic stop, including a failure to abide a traffic light, following another vehicle too closely and nearly hitting a parked vehicle. Paulino’s testimony was credible, and his testimony regarding the second and third infraction matched the footage taken from his body camera, which had been activated after he observed the first infraction. His testimony was also corroborated by his issuance of summonses to Carter for following too closely and failure to abide traffic light, and neither Carter nor Moody presented any rebuttal evidence. As such, the stop was reasonable and legitimate at its inception.
Further, Paulino’s unrebutted testimony that he smelled marijuana emanating from the vehicle and each of the defendants individually is sufficient on its own to support a finding of probable cause to search the vehicle and the defendants. Importantly, neither Carter nor Moody presented any evidence to contradict Paulino’s testimony that he, in fact, smelled marijuana during the traffic stop, and the mere fact that marijuana was not ultimately found in the vehicle does not undermine this probable cause finding.
The time of day, 3:42 a.m., Paulino’s observance of multiple traffic infractions, Carter’s inconsistent statements as to her and Moody’s prior location and Paulino’s observance of Moody repeatedly leaning over to the driver’s side of the vehicle and ducking down once Paulino activated his lights are all factors that further support a finding of probable cause. Under these circumstances, the government has shown that Paulino was justified in extending the stop and that the traffic stop was lawful for the entirety of its duration.
Motion to suppress denied.
United States v. Moody, Case No. 4:19-cr-51, July 31, 2019. EDVA at Newport News (Doumar). VLW 019-3-373. 10 pp.
