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No probable cause to search parked car for marijuana

Where police were drawn to appellee’s car by the odor of burning marijuana, they lacked probable cause to search it under the facts and circumstances of this case.

Issue on appeal

“The Commonwealth on appeal challenges the trial court’s conclusion that a civil offense could not give rise to probable cause. Assuming without deciding that the civil nature of the offense makes no difference to the validity of the search, this Court affirms for a different reason: the totality of the circumstances here did not establish probable cause to search the vehicle.”


“The Commonwealth insists on brief — and reiterated at oral argument — that the presence of the marijuana cigarette alone established probable cause to search for more marijuana.

“But probable cause requires a review of the totality of the circumstances, and here a full review of the facts shows there was no fair probability that the car contained additional contraband or evidence of a crime.

“Officer Hawker was drawn to appellee’s car in the hotel parking lot specifically because of the odor of burning marijuana. In addition, the officers initiated their interaction with appellee without the necessity of making a traffic stop for any infraction on a public road.

“Appellee was instead legitimately parked in a parking space on private property — a hotel where she was a guest and had a room. She was not in a ‘high-crime area.’ Nothing indicated that she had been driving recently, and she even told the officers she did not plan on driving anywhere.

“The officers did not think appellee was dangerous; on the contrary, Officer Hawker described appellee as ‘cooperative’ and ‘acting normal’ — and the body-cam video confirms as much. Appellee followed all directions, stepping out of the car when asked.

“She never tried to hide the cigarette or anything else from the officers, nor did she make any other furtive movements. She answered the officer’s questions, even admitting the cigarette she held contained marijuana. She also told the officers, ‘All I have is a blunt,’ and gave no indication that she had recently purchased the marijuana unlawfully.

“Nor did the officers note any other circumstance — other than the cigarette — suggesting the car contained additional contraband, let alone evidence of a crime. They saw no other drugs or drug paraphernalia in plain sight, noticed no weapons, and detected no additional scent of marijuana coming from the car.”


“Taken together, these circumstances did not create a fair probability that the car contained other contraband.

“The Commonwealth has failed to articulate any other circumstances contributing to a probable cause finding, instead relying on the assumption that a reasonable officer in this scenario could infer from the burning marijuana cigarette alone, without additional circumstances, that appellee had more marijuana in the car.

“Such guesswork without additional facts, as is the case here, would amount to nothing more than a suspicion – and ‘probable cause requires more than a strong suspicion.’ …

“This Court refuses to put that much weight on a single ‘fact in isolation’ rather than ‘consider[ing] the whole picture.’ … And considering the totality of the circumstances of this particular case, the officers did not have the requisite probable cause to search the car without a warrant.”


Commonwealth v. Spencer, Record No. 1443-22-1, Feb. 14, 2023. CAV unpublished opinion (Huff). From the Circuit Court of the City of Virginia Beach. (McGarry). Michael D. Defricke, Colin D. Stolle for appellant. Brett P. Blobaum for appellee. VLW 023-7-080, 8 pp.