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Statute banning search based on pot odor not retroactive

Where the police conducted a search based on the smell of marijuana coming from a vehicle, appellant’s motion to suppress, based on a statute banning such searches, was correctly denied.

The statute became effective after the search was conducted. Two Court of Appeals panels have ruled the statute is not retroactive.


In April 2019, a police officer stopped appellant Hicks’ car because he was driving without headlights. As she approached the car, she smelled the odor of marijuana coming from it. A vehicle search revealed a firearm under the driver’s seat. A grand jury indicted him under Code § 18.2-308.2 for possession of a firearm “because he had previously been adjudicated delinquent of an offense that would have been a felony if committed by an adult.”

In June 2021, Hicks filed a motion in limine to suppress the firearm. “Hicks argued that Code § 4.1-1302(A) – which prohibits stops, searches, and seizures solely on the basis of the odor of marijuana and requires the circuit court to exclude evidence discovered or obtained in violation of the statute – barred the Commonwealth from using any evidence resulting from the vehicular search.”

The trial court noted that the statute became effective on July 1, 2021. The court ruled the statute could not be retroactively applied and denied the motion. Hicks pleaded guilty and appealed.

Prior precedent

“Two panels of this Court have recently heard and decided appeals requiring statutory interpretation of Code § 4.1-1302(A) and its predecessor, Code § 18.2-250.1(F): Montgomery v. Commonwealth, 75 Va. App. 182 (2022), and Street v. Commonwealth, ___ Va. App. ___, ___ (Aug. 2, 2022).

Montgomery declined to apply the statute retroactively, as did the panel in Street.

“Street and Montgomery are controlling in Hicks’ appeal due to the interpanel accord doctrine. ‘A holding by one panel of the Court of Appeals of Virginia “bind[s] all other three-judge panels under the interpanel accord doctrine.”’ … A decision of one panel protected by the interpanel accord doctrine cannot be overruled except by the Court of Appeals sitting en banc or by the Supreme Court of Virginia. …

“[T]he issue presented in Hicks’ case is indistinguishable from the issue presented in Street v. Commonwealth, and it is very similar to the statutory interpretation issue in Montgomery v. Commonwealth.

“When the search of Hicks’ vehicle took place in 2019, that search ‘did not and could not violate the nonexistent statute.’ … Consequently, the exclusionary remedy found in Code § 4.1-1302(A) is limited by the right that new statute created, and because there was no right to be free from a marijuana-based search in 2019, the firearm found in Hicks’ car was admissible as evidence.”


Hicks v. Commonwealth, Record No. 1147-21-2, Aug. 30, 2022. CAV (Humphreys) From the Circuit Court of the City of Richmond (Cavedo). Aaron C. Forstie for appellant. Ken J. Baldassari, Jason S. Miyares for appellee. VLW 022-7-359, 8 pp.

VLW 022-7-359

Virginia Lawyers Weekly