Odor of marijuana did not prevent vehicle search

Where police expanded the search of appellant’s car after smelling marijuana, Code § 4.1-1302(A), which prevents such searches, does not apply retroactively. Appellant’s motion to suppress evidence was correctly denied.

Background

Officer Beck saw a car that was swerving. Beck ran the car’s license plate number and found that the car’s registered owner “‘had a suspended driver’s license … based on DUI … convictions.’ Beck began a traffic stop.

“Appellant, the sole occupant of the car, acknowledged that he was the car’s registered owner and provided Beck with a photo I.D. from his employment.… “Beck confirmed that appellant’s driver’s license had been suspended. He also determined that ‘by statute,’ appellant’s car would have to be impounded. Beck then began an inventory search of the car pursuant to the impoundment.”

Part of the search procedure was to check the car’s trunk for a spare tire. “On opening appellant’s trunk, Beck smelled the odor of marijuana and saw, ‘in plain view,’ three two-gallon plastic containers that were ‘opaque-ish’ in appearance. The containers were closed and labelled with what Beck recognized as the street names for various strains of marijuana.

“Beck could see plastic sandwich bags inside the containers and saw ‘some specks of things on [the containers]’ that ‘appear[ed] to be marijuana residue.’

“Near the containers, Beck also noticed a black plastic trash bag that he could ‘see a little bit inside of’ because it was not fully closed. Inside the bag, Beck saw ‘[k]notted corner bags’ or ‘knotted baggies’ that he recognized as items used in the narcotics trade.

“He could also see, inside the knotted items, pills that appeared to be Xanax. Beck later told the trial court that he recognized the pills as Xanax based upon their ‘pretty specific’ and ‘pretty unique’ appearance, which differed from any other street drug Beck could recall.

“Acting upon his recognition of what he ‘suspected to be narcotics[,] based on [his] training and experience,’ Beck searched appellant and then continued to search the car.” More suspected drugs were discovered.

Appellant moved to suppress. The trial court denied the motion. Appellant appeals his convictions of possession of a controlled substance with the intent to distribute, possession of marijuana with the intent to distribute, and driving on a suspended license.

Marijuana odor

“Appellant contends that Code § 4.1-1302(A), which took effect on July 1, 2021, more than six months after the search of his car, is procedural in nature. Accordingly, he argues that the statute applies retroactively and that it was thus unlawful for Beck to expand his search based upon his detection of the odor of marijuana.

“‘Whether a statute should be applied retroactively is … a question of law that an appellate court reviews de novo.” Street v. Commonwealth, 75 Va. App. 298, 304 (2022). ‘The “usual rule” regarding a new statute is “that legislation is … prospective” only.’ …

“This Court’s decision in Street controls our analysis of this issue. In Street, the appellant presented the same argument that appellant presents on brief – that Code § 4.1-1302(A) creates an evidentiary rule and is thus purely procedural in nature and that accordingly, the statute’s exclusionary remedy provisions should be applied retroactively. …

“We rejected that argument then, holding, after a thorough analysis, that ‘the statute unambiguously provides that it does not apply retroactively,’ and thus we are bound to reject that argument now. …

“It necessarily follows that the evidence Beck obtained when he searched appellant’s car after smelling marijuana in it more than six months before the statute’s enactment was not the result of a search in violation of Code § 4.1-1302(A), ‘because one cannot violate a statute or break a rule that does not exist. Because the statute was not in effect at the time of the search, no law enforcement officer could have violated it.’ …

“Accordingly, we reject appellant’s argument that under operation of Code § 4.1-1302(A), it was unlawful for Beck to expand his search of appellant’s car based upon his detection of the odor of marijuana.”

Plain view

“Appellant further contends that although the pills in the black trash bag ‘could have been Xanax,’ they ‘were not “immediately” noticeable as contraband’ and Beck ‘was not in a position to immediately determine that [they] were incriminating.’

“Accordingly, appellant argues, the plain view doctrine did not apply to justify the warrantless expansion of the scope of Beck’s search. …

“The United States Supreme Court has held that three requirements must be met for the plain view exception to the warrant requirement to apply: ‘1) that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, 2) that the incriminating character of the evidence must be immediately apparent, and 3) that the officer have a lawful right of access to the object itself.’ …

“[A]ppellant contends that the exception’s second requirement was not satisfied, arguing that the pills’ incriminating nature as contraband was not immediately apparent to Beck. We disagree.

“Beck testified that the pills he saw in plain view were grouped inside multiple ‘[k]notted corner bags’ or ‘knotted baggies’ that he recognized as items used in the narcotics trade.

“He also stated that he could recognize the pills as comprising Xanax based upon the fact that they exhibited the ‘pretty specific’ and ‘pretty unique” appearance of Xanax pills, which differed from the appearance of any other street drug Beck could recall.

“The pills were also present in quantity – each of the multiple knotted bags or baggies was the size of a golf ball.

“[W]e conclude that the second requirement of the plain view warrant exception was satisfied because the incriminating character of the pills as contraband narcotics was immediately apparent to Beck.”

Expanded search

“[W]hen Beck opened appellant’s trunk during a lawful inventory search, he smelled the odor of marijuana. …

“[T]he distinctive odor Beck smelled emanating from appellant’s trunk was a basis for probable cause to believe that the car contained marijuana. … But there was more than mere ‘plain smell’ to provide Beck with probable cause to expand his inventory search into a broader search for contraband narcotics.

“In addition to the smell of marijuana, Beck recognized that the plastic containers in the trunk were labelled with the street names of different strains of marijuana, and he noted the presence of what appeared to be marijuana residue on the containers.

“These indicia of illicit narcotics activity were in plain view when Beck lawfully opened appellant’s trunk to check for a spare tire. …

“Thus, Beck had probable cause to search for contraband.”

Affirmed.

Williams v. Commonwealth, Record No. 0283-22-1, June 20, 2023. CAV (unpublished opinion) (Malveaux). From the Circuit Court of Chesterfield County (Brice). Christopher T. Holinger for appellant. Jason S. Miyares, Mason D. Williams, Robin M Nagel for appellee. VLW 023-7-245, 19 pp.