Virginia Lawyers Weekly VA Lawyers Weekly
Even though police saw tobacco products in plain view after stopping a vehicle, in which all occupants were too young to legally possess tobacco products, this did not justify a vehicle search. Defendant’s motion to suppress cocaine found during the search is granted.
Further, the fact that two officers detected a faint smell of unburnt marijuana on defendant after she was ordered from the car did not supply probable cause for a vehicle search.
Background
Two Virginia Beach police officers were patrolling when they saw suspicious activity between the occupants of two vehicles parked at a convenience store. One of the vehicles left the lot. The police followed. Officer Crawford conducted a traffic stop after discovering the vehicle’s license plate was expired. As he approached the vehicle, he could see tobacco products in plain view.
Defendant was the driver. There were two other occupants. Crawford asked defendant to step from the vehicle. After she did so, Crawford said he detected a faint odor of unburnt marijuana coming from defendant. Harrington, another officer on the scene, engaged the two passengers. Harrington said he did not smell marijuana coming from the car, but detected a marijuana odor when he was standing by defendant and Crawford.
The police determined that none of the vehicle’s occupants were 21 years old. Based on the marijuana odor and the tobacco products, they conducted a vehicle search and discovered a baggie containing what later proved to be cocaine.
Defendant has moved to suppress all evidence seized during the vehicle search.
No probable cause
“The Commonwealth first contends that the officers’ observation of certain tobacco products in plain view supplied the requisite probable cause to search the entire vehicle. This is based on the fact that Va. Code§ 18.2-371.2 provides, in part, that ‘[n]o person less than 21 years of age shall … possess any tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking.’ …
“It does not appear that the Supreme Court of Virginia, or any court of this Commonwealth, has specifically addressed the issue of whether the observation of a violation of Va. Code§ 18.2-371.2 can provide the requisite probable cause to search a vehicle under the automobile exception or plain view doctrine. …
“The fact that a violation of 18.2-371.2 is a non-arrestable offense and is punishable only as a civil penalty gives this Court guidance. This Court finds that the mere presence of tobacco products in a vehicle in which all occupants are under the age of 21 – a non-arrestable offense punishable only by a civil penalty – does not supply the requisite probable cause for a law enforcement officer to search an entire vehicle as contemplated by the existing Fourth Amendment caselaw. The existing caselaw generally disfavors warrantless searches. …
“There is no dispute that it is unlawful for a person under the age of 21 to possess tobacco products, therefore making the JUUL devices and nicotine pods in the vehicle ‘contraband’ … but to hold that observation of such products, the possession of which has been deemed a non-arrestable civil penalty, justifies a warrantless search of the vehicle does not appear to be supported by existing case law, and further only seems frustrate the protections afforded by the Fourth Amendment and the intent of the General Assembly.
“In addition, while clearly not binding at the time of this writing or the Defendant’s interaction with the police officers in this case, such a result seems to be in contravention of several statutory changes taking effect on March 1, 2021 aimed at reinforcing the Fourth Amendment as it pertains to the ‘plain smell’ doctrine related to the odor of marijuana and how that alone will not provide the basis for a warrantless search of a vehicle.
“It would seem odd to hold that, on the one hand, law enforcement can search a teenage adult’s entire vehicle for being in possession of tobacco, but on the other hand law enforcement cannot search an individual’s vehicle if they are presented with a strong odor of marijuana when the driver rolls down the window.”
Marijuana odor
“Officer Crawford testified that he noticed a faint smell of cultivated and unburnt marijuana coming from the defendant, but that he did not notice the smell until after the defendant was out of the vehicle. In a similar vein, Officer Harrington testified that he also noticed a faint smell of marijuana coming from the defendant while she was interacting with Officer Crawford, but that he did not smell any marijuana in the vehicle itself throughout the stop. …
“‘[I]f an officer stops a vehicle and has probable cause to believe that the vehicle contains evidence of a crime, then a warrantless search of that vehicle is permissible under the automobile exception’ to the Fourth Amendment’s general requirement that law enforcement obtain a warrant before conducting a search.’ … (emphasis added).
“Here, the officers testified that they did not notice the smell of the marijuana until the defendant stepped out of the vehicle. Even then, the smell appeared to be localized to the defendant and not present in the vehicle itself. Based upon the totality of the evidence as presented, at most, the officers only had probable cause to believe that marijuana was on the defendant’s person.”
The motion to suppress is granted.
Commonwealth v. Becker, Case No. CR20-1003, Jan. 26, 2021, Virginia Beach Cir. Ct. (Duffan). Robert B. Humphreys, Michael A. Robusto for the parties. VLW 021-8-019, 4 pp.
