Motion to suppress evidence denied

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Where police observed marijuana smoke coming from a vehicle defendant occupied, there was no violation of Code § 4.1-1302, which prohibits the police from stopping, searching or seizing persons, places or things “solely on the basis of the odor of marijuana[.]” The presence of smoke, in addition to the odor of marijuana, justified defendant’s seizure.

Background

Police officers saw a car in a parking lot that had its headlights on. “When the officers approached on foot, the car’s engine was running but the headlights were off by this time. Officer Fox could smell the strong odor of burning marijuana coming from the car.

“Officer Fox could see two persons in the backseat lying down and kissing. One was a female and the other was the defendant. Officer Fox knocked on the window, and the defendant rolled down the window.

“Smoke came out of the car when the defendant rolled down the window. Officer Fox asked for the defendant’s license. Officer Fox asked if they were ‘smoking a little bit of weed.’

“The defendant stated that they had already smoked it. Officer Fox responded, ‘Dude, come on now, I can smell it, and the smoke is blowing out right now.’”

Defendant and his companion had to be asked several times to exit the car. When defendant got out, he locked the car door and closed it behind him.

Fox learned from dispatch that defendant is a convicted felon and might have gang associations. Fox twice asked defendant “if there was anything in the car he should know about.” Defendant did not answer. Fox then told defendant that he was going to search the car.

The car, however, was locked. Fox shined a flashlight into the car and saw a gun. He immediately arrested defendant. After police broke a car window to gain access, a search also revealed marijuana and psilocybin.

Defendant has moved to suppress.

Smell and smoke

“The defendant contends that the evidence should be suppressed pursuant to Virginia Code § 4.1-1302 because the officers based their seizure of the defendant and their subsequent search solely on the odor of marijuana. …

“The issue turns on the word ‘solely’ in the statute. … The observation of smoke — in addition to the odor of marijuana — takes this case outside the prohibition of Va. Code§ 4.1-1302. The officer observed smoke coming out of the car when the defendant rolled down the window. At this point, no search or seizure had occurred.”

Seizure justified

“The seizure of the defendant was justified. The officers detected strong odor of burnt marijuana, observed marijuana smoke, were in a high crime area at night, were in an area where numerous weapons had been recovered, observed a car with its lights on initially and then off, detected the engine running, and heard the defendant’s admission that he had smoked marijuana.

“When the defendant submitted to the authority of the officers and stepped outside the vehicle — and, therefore, was seized — the officers had, at the very least, reasonable suspicion that the defendant had illegally consumed marijuana in public[.] …

“Furthermore, the officers at this point had reasonable suspicion that the defendant had operated a car under the influence of marijuana.

No search for gun

“[T]he gun was found during the period that the defendant was legally detained. But this does not necessarily render a subsequent search legal if the type of search would require something more — such as probable cause or reasonable suspicion that the person was armed and dangerous and would have access to weapons in the car.

“But here, the gun was recovered not from any subsequent search. It was from a flashlight shining into the car.”

Car search justified

“The defendant has also raised arguments regarding whether there was probable cause to search the vehicle. When the actual search of the car took place, the officers already knew that the defendant was a convicted felon and that he had a gun in the car.

“Probable cause was established to search the car. And a warrant is not required to search a car as long as probable cause exists.”

The motion to suppress is denied.

Commonwealth v. Smith, CR23-571, Aug. 15, 2023. In the Virginia Beach Circuit Court (Farashahi). Kari A. Kolar for the commonwealth. William T. Bishop for defendant. VLW 023-8-056, 11 pp.