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Probable cause to search vehicle after traffic stop

Virginia Lawyers Weekly//February 16, 2023

Probable cause to search vehicle after traffic stop

Virginia Lawyers Weekly//February 16, 2023

Even though the commonwealth did not include in its notice of appeal a case relating to a methamphetamine charge, it referenced the case in an accompanying certificate. As a result, there is jurisdiction to hear the commonwealth’s appeal.


Following a traffic stop that resulted in four charges against the appellee, the trial court dismissed them, ruling that there was no probable cause to perform a search after police were summoned because someone “was smoking something in the area.”

The trial court found, in part, “that [Officer] Hodge ‘didn’t testify to anything that would give him reasonable suspicion or probable cause to search the vehicle.’

“The trial court determined that an empty knife sheath was not enough for probable cause to search, and if the officer was actually concerned with officer safety, the trial court stated that Hodge could have patted Dotson [the appellant] down.

“The trial court explicitly found that this information, in total, was not enough for Hodge to assume ‘oh, he must be in possession of the knife that used to be in there.’”


“Raising this issue sua sponte, this Court inquired of the parties whether the Commonwealth had forfeited its appeal of the possession charge related to methamphetamine by failing to include the relevant case number, (CR21-0744), in the notice of appeal, thus depriving this Court of subject matter jurisdiction over the appeal for that case. …

“As an initial matter, we agree with Dotson that the amended notice of appeal, filed September 30, 2022, was untimely filed, and our Court would have no jurisdiction to consider an appeal pursuant to that notice.

“Therefore, it is the September 6, 2022 notice of appeal that must adequately identify the case or cases to be appealed in order for this Court to exercise jurisdiction over the appeal related to case number CR21-0744, the methamphetamine charge. …

“[W]hile the notice of appeal may have been deficient on its own, the accompanying certificate clarified what cases the Commonwealth intended to appeal by stating that the suppressed evidence was ‘substantial proof of facts material to the Commonwealth’s case, to wit: illegal narcotics (cocaine and methamphetamine).’

“The certificate makes clear that the Commonwealth intended to appeal both the possession charge related to cocaine, as well as the possession charge related to methamphetamine.

“Because the Commonwealth did in fact file a timely notice of appeal, and because that notice of appeal, read in conjunction with the certificate, adequately identified the cases to be appealed, we hold that, under the facts of this case, dismissal for failure to satisfy the rules governing notice of appeal is not warranted, as we have jurisdiction over the appeal related to case number CR21-0744.”

The search

“We turn next to the question of whether the search conducted by Hodge was justified. …

“[T]he testimony revealed that Hodge was dispatched to the scene following a report that somebody was smoking something in the area.

“There, Hodge found Dotson in the driver’s seat of his truck. Hodge testified that Dotson’s position reminded him of a drug overdose. Hodge ‘didn’t know if [Dotson] was overdosing or what was going on.’ The windows were down.

“Hodge attempted to awaken Dotson, to no avail. Hodge then circled the truck, peering in through the windows, to look for possible weapons. He observed what he believed to be marijuana in an open satchel in the defendant’s lap as well as an unlabeled, transparent pill bottle containing blue pills that Hodge believed to be Xanax.

“Hodge testified that he believed that the pills were Xanax pills because he had “seen blue pills like this before.” Further, Hodge observed what he believed to be a knife sheath approximately one foot to eighteen inches in length in the back seat of the truck.

“Hodge again attempted to awaken Dotson a second time by knocking on the outside of the truck, and Dotson stirred awake. Hodge asked Dotson about the open satchel in his lap as well as the unlabeled pill bottle, asking ‘what’s that?’

“Dotson voluntarily handed the pill bottle to Hodge. Dotson immediately disclaimed ownership of everything in the truck, including the pill bottle, stating that anything in the truck belonged to his girlfriend.

“Hodge also testified that ‘Dotson wouldn’t quit you know moving around, being fidgety, so [Hodge] instructed him to exit the vehicle.’ Dotson complied, and thereupon Hodge placed Dotson in handcuffs and took Dotson to the back of Hodge’s police vehicle.

“Once placed in the back of Hodge’s police vehicle, Dotson again repeated that ‘anything in the vehicle would be his girlfriend’s.’ Hodge ran a criminal history check on the defendant and discovered that he was a convicted felon.

“As Dotson correctly states, it was at this moment that the consensual encounter became a detention, of which thereafter any subsequent search of the vehicle would need to be supported by probable cause. … Only after Hodge went back to the vehicle and searched the satchel did he find cocaine and methamphetamine.”

Probable cause

“Hodge had probable cause to believe that Dotson was in possession of illegal substances. Xanax is a Schedule IV controlled substance, and the possession of Xanax without a ‘valid prescription or order of a practitioner while acting in the course of his professional practice’ is a Class 2 misdemeanor. …

“Hodge testified that he believed that the blue pills were Xanax because he had seen pills like that before. Further, the pills were in an unlabeled, translucent bottle, and Dotson immediately disclaimed them.

“Dotson was also fidgety and would not stop moving. And finally, Dotson again disclaimed anything found in the truck.

“The fact that the pills were in an unmarked bottle adds to the likelihood that Dotson did not possess them lawfully, pursuant to a valid prescription.

“Further, Dotson’s immediate disclaimer of the pills and his repeated assertion that anything found in the truck would be his girlfriend’s demonstrated his guilty knowledge that there would be illegal contraband in the truck. …

“These circumstances when coupled with the defendant’s ‘fidgety’ demeanor and prior felony conviction were sufficient to demonstrate there was ‘a fair probability’ that the defendant’s truck contained further ‘contraband or evidence of a crime.’ …

“Hodge’s search after discovering Dotson’s illegal possession of the Xanax pills was justified, as was his subsequent discovery of cocaine and methamphetamine in the satchel.”


Commonwealth v. Dotson, Record No. 1341-22-3, Feb. 7, 2023, 2022. CAV unpublished opinion (Fulton III). From the Circuit Court of Henry County (McGarry). John W. Beamer, Jason S. Miyares for appellant. Samantha Offutt Thames for appellee. VLW 023-7-071, 15 pp.

VLW 023-7-071

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