When I started doing criminal defense in 1991, I was reminded that drug cases often are won or lost by whether the drugs get suppressed. Seeking suppression of physical evidence is important in any criminal case alleging possession of contraband, and beyond, which is why I repeatedly blog about the Fourth Amendment, which provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Today I share the following important Virginia Fourth Amendment appellate caselaw for challenging searches after a traffic stop:

1. “If… a reasonable person would not feel free to decline an officer’s requests or would not feel free to leave, the encounter is not consensual and constitutes an illegal seizure under the Fourth Amendment.” Harris v. Virginia, 266 Va. 28, 32 (2003) (citing United States v. Mendenhall, 446 U.S. 544, 558–59 (1980)).

“Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer’s language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave… The decision whether the encounter was consensual must be made based on the totality of the circumstances.” Harris v. Virginia, 266 Va. at 32.

Harris invalidates the search of Harris’s vehicle (which found stolen property therein), where the police stopped Harris for a broken taillight, decided not to issue a citation nor written warning, did not tell Harris that he was free to go, and when done with the traffic stop and without reasonable articulable suspicion to hold Harris further, asked for permission to search Harris’s vehicle. Under those circumstances, Harris held that Harris would not have felt free to leave, rendering the subsequent purported “consent” search non-consensual.

2.  “Although Deputy Bolen had told [defendant] Reittinger that he was free to go, we think that the events that transpired immediately thereafter would suggest to a reasonable person that just the opposite was the case. We do not think that a reasonable person, under the circumstances, would have considered that he was free to disregard the deputies and simply drive away. Therefore, we conclude, from our de novo review of the facts, that Reittinger was unlawfully seized in violation of his Fourth Amendment rights; that the trial court, though correct about the seizure, erred in refusing to suppress the product of the unlawful seizure and search of Reittinger; and that the Court of Appeals erred in affirming the trial court’s judgment.” Reittinger v. Virginia, 260 Va. 232, 237 (2000).

In Reittinger, police stopped Reittinger for having a headlight out, decided not to write him a citation after Reittinger showed them a bulb he was planning to install the next day, and told Reittinger he was free to leave. Only after telling Reittinger that he was free to leave, did the police keep asking if they could search the car, despite admitting in court that at the time the search request was made, the police had no reasonable articulable suspicion of criminal activity by Reittinger.

3. Keep in mind that the above-discussed Harris and Reittinger cases succeed, and thus limit the effect of, the United States Supreme Court’s Ohio v. Robinette,  519 U.S. 33 (1996). Robinette upholds as lawful a “consent search” of Robinette’s vehicle that found illegal drugs. This search was conducted after a speeding stop that yielded a verbal police warning rather than a ticket.  After the warning, the police officer said: “‘One question before you get gone: [A]re you carrying any illegal contraband in your  car? Any weapons of any kind, drugs, anything like that?'” Robinette said “no”, and then agreed to the officer’s request to search his vehicle.

Robinette seemed never to have addressed the issue of whether a new seizure — requiring reasonable articulable suspicion — takes place once a traffic stop ends. Instead, Robinette presents the United States Supreme Court “with the question whether the Fourth Amendment requires that a lawfully seized defendant must be advised that he is ‘free to go’ before his consent to search will be recognized as voluntary. We hold that it does not.” Robinette.

Criminal defendants need to know that we still have a Fourth Amendment and Bill of Rights. The criminal defense must use the Fourth Amendment to its maximum benefit.