Legal at the time: Another judge holds traffic stop changes not retroactive

New laws limiting police traffic stops for minor offenses should not restrict prosecution of cases that arose from stops before those laws took effect, a Virginia trial judge has ruled.

In Commonwealth v. Eberhardt (VLW 021-8-129), Richmond Circuit Judge W. Reilly Marchant said to hold otherwise would defy common sense and punish police for what was legal conduct at the time.

Virginia was the first state in the nation to bar traffic stops for low-level offenses, often viewed as pretexts that have a disproportionate impact on persons of color.

The new traffic stop laws were enacted last year after the police killing of George Floyd in Minneapolis and designed to curb racial disparities in police conduct. The amendments that took effect in March prohibit traffic stops for infractions such as broken tail lights, tinted windows and the smell of marijuana. Evidence from improper stops can be excluded.

Defense lawyers have tried to use the reforms to block evidence from traffic stops that took place before the new measures took effect. Rulings around the state have gone both ways, a public defender reported.

In June, Roanoke Circuit Judge Charles N. Dorsey suppressed a packet of meth found in a defendant’s car in a 2020 traffic stop based on a broken taillight and expired registration. He said the changes in the code were “procedural” and therefore retroactive.

But in August, Newport News Circuit Judge Gary A. Mills held the reform legislation lacked any express provision that the changes should be applied retroactively. He declined to suppress evidence of drugs arising from a stop for window tinting and a license plate violation.

Rulings have been “about half-and-half” on the retroactive application of the traffic stop changes, according to Assistant Public Defender Sabina B. Thaler, who represented the Richmond defendant.

‘Practicable’ test

In the Richmond case, Damon Eberhardt was a passenger in a car pulled over by police on Aug. 16, 2019, for having a taillight out. He ended up charged with possession of a firearm as a violent felon and carrying a concealed weapon, second offense.

Represented by the public defender’s office, Eberhardt pointed to the revised vehicle lighting laws that now include exclusion provisions.

“Each of these rear light-related code sections bar the Commonwealth from introducing evidence discovered or obtained as the result of a stop for minor traffic infraction related to vehicle lights,” Thaler wrote in a July motion.

She argued that, despite the fact the stop took place before the reform laws were effective, the statutory exclusion language was procedural in nature and therefore controlled at the time of the court proceeding.

But Marchant pointed to appellate opinions qualifying the rule for procedural amendments to the law. Procedural provisions control the conduct of trials “insofar as practicable,” according to the cited cases.

“As argued by the Commonwealth, even if a change in the law is deemed procedural, there is no absolute requirement that it be applied at the time of trial, unless it is ‘practicable to do so,’” Marchant wrote.

He analogized to a 1996 Court of Appeals decision applying the “practicable” test.

“While the Court maintains doubts about the ‘procedural’ nature of these amendments, that issue becomes moot in light of the Court’s finding that … to apply these amendments and their statutorily created exclusionary rule … would not serve the purpose of any exclusionary rule (to deter wrongful police conduct), would serve to punish the police for what was legal conduct at the time it was undertaken, and in sum, would ‘defy common sense,’ and would not be ‘practicable to do so’ as required by Virginia Code § 1-239,” Marchant wrote.

Suppression motion pending

While Marchant denied the defense motion to exclude evidence based on the new traffic stop amendments, he still has not ruled on a motion to suppress based on traditional constitutional objections to the traffic stop. The defense contends the encounter was a racially motivated, pretextual stop. A hearing is scheduled for Dec. 22.

The commonwealth is represented by Assistant Commonwealth’s Attorney Sarah J. Heller, who was not available for comment.

Thaler said a number of judges have applied the traffic amendments retroactively, finding them procedural and not substantive. She said Richmond Judge David Eugene Cheek Sr. is among the judges at odds with Marchant’s conclusion.

The issue remains unresolved, she said.

“We won’t know for sure until someone appeals,” Thaler added.