Vehicle search evidence suppressed

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Although an obscured license plate on defendant’s vehicle provided the police reasonable suspicion to make a traffic stop, there was no probable cause for a subsequent vehicle search.

Evidence found during the search will be suppressed.

Traffic stop

“The Defendant argues that the initial traffic stop was unconstitutional since there did not exist enough evidence to justify a detention for suspicion of a violation of Va. Code Ann. § 46.2-716(8). The Court disagrees.

“The Court finds, based on the facts leading up to the traffic stop, that a reasonable officer in Officer Graves’ shoes would possess a reasonable objective suspicion that a traffic violation had occurred.

“Va. Code Ann.§ 46.2-716(8) states ‘No … type of covering shall be placed, mounted, or installed on, around, or over any license plate if such … covering in any way alters or obscures [the license plate].’

“Officer Graves testified that when he observed the Defendant drive past him, he was not able to read the vehicle’s license plate because it was obscured by what he believed to be a blue film. Officer Graves had to use his spotlight to illuminate the tag enough so he could call in the alpha-numeric information.

“The fact that Officer Graves could not read the plate without additional, non-standard lighting gave him a reasonable suspicion to conduct a traffic stop.”

Initial detention

“The Defendant next argues that the detention leading up to the search was unconstitutional for two reasons.

“First, he argues that the initial interaction at the driver side window up to the two minutes it took Officer Graves to check on the Defendant and vehicle in his squad car was too long[.] …

“Specifically, the Defendant argues an objectively permissible detention under these facts should be only that amount of time it would take the officer to effectuate an investigation for a violation of Va. Code Ann. § 46.2-716(8) and no longer. The Court disagrees.

“The Court finds this initial detention to be reasonable for two reasons. First, inquiring information about the status of the vehicle (registration, plates etc.) and the driver (warrants, license etc.) is not unreasonable for any traffic stop.

“Second, the three things discovered by Officer Graves during the initial encounter (marijuana presence in the vehicle, marijuana packaging, and Defendant’s admission of prior consumption) provided Officer Graves with a reasonably objective suspicion that a violation of Va. Code Ann. § 18.2-266 and/or Va. Code Ann. § 4.1-1107(8) had occurred.”

Second detention

“Second, the Defendant argues that the rest of the detention leading up to the search was unconstitutional. The Court agrees.

“As noted above, the Court believes a reasonable officer would possess an objective suspicion of two marijuana related offenses and could pursue an investigation down that road.

“This would typically begin with further questions about consumption (how long before the operation did it occur) and/or removal from the car to test sobriety (field sobriety, HGN, etc.).

“However, this did not occur, and Officer Graves took the investigation in a different direction, to-wit: search for contraband (more marijuana). This avenue, the search for contraband, was not supported by probable cause[.] …

“At first, it would seem that a detention for a reason not supported by the Fourth Amendment (search for contraband) would be permissible if a reasonable officer in Officer Graves’ shoes would be justified for another reason (DUI and/or consumption while driving), at least for whatever amount of time would be reasonable in this case to either confirm or dispel the reasonable suspicion.

“In making reasonable-suspicion determinations, the test is whether the facts and circumstances apparent to the officer at the time of the stop would create in the mind of a reasonable officer in the same position a suspicion that a violation of the law was occurring or was about to occur; the officer’s subjective thoughts are irrelevant. …

“However problematic this task would seem, there could be a stopping point wherein a court could find at what time the constitutionally valid suspicion is either satiated or relinquished.

“However, in this case, it would seem that Officer Graves abandoned this constitutional avenue permanently despite acknowledging, during the hearing, that it was a suspicion he possessed. For this reason, the Court takes the position that it does not need to conduct such an exercise in determining the length of time this investigation would have reasonably taken.

“However, in the alternative, the Court concludes that from all the physical and verbal behavior exhibited by the Defendant … and the lack of evidence of consumption while operating the vehicle (lack of burnt MJ cigarette, burnt odor etc.), a reasonable officer in Officer Graves’ shoes would have concluded shortly after placing the Defendant in handcuffs that he was not inebriated, not exhibiting effects of consumption, and that the appearance, conduct, speech, and other physical characteristics of the Defendant were not consistent with the consumption of marijuana.”

No probable cause

“Finally, the Defendant argues that the search of his vehicle was not supported by probable cause. The Court agrees.

“The marijuana observed was an amount, if confirmed, that would be legal under the law in existence at the time of the stop and, under settled precedent, ‘probable cause cannot be established “solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes.”’ …

“To justify the use of the automobile exception to a warrant requirement for a search, a reasonable officer would need to observe the ‘incriminating character of the object’ on which he relies. …

“The evidence present at the time of the stop (packaging, legal amount of what appeared to be un-burnt marijuana, un-burnt odor, and an admission of consumption prior to operation) all gave the officer a reasonable suspicion of DUI and/or violation of§ 4.1-1107(8), not probable cause to search the vehicle for ‘contraband.’ …

“In the alternative, … the Court finds as a matter of fact that Officer Graves abandoned any investigation of a DUI or violation of§ 4.1-1107(8) and so any detention beyond this point would not provide the necessary probable cause to search the Defendant’s vehicle.”

The motion to suppress is granted.

Commonwealth v. Deberry II, CR23-1119, Aug. 23, 2023. In the Virginia Beach Circuit Court (Frucci). Andrew R. Parker for the commonwealth. James O. Broccoletti for defendant. VLW 023-8-058, 7 pp.