Nervousness gets seized upon by police all the time- That is not enough for a lawful search

Nervousness is a favorite suspect description used by many police officers, including testimony about sweating, pulsating artery and uncomfortable movements. As a Fairfax criminal lawyer, I know that a lawful search under the Constitution’s Fourth Amendment is not even available when combining nervous behavior, lawful material in plain view that is popular for drug packaging, a large quantity of currency, and a half minute to stop for police. Henry v. Commonwealth of Virginia, Record No. 0771-24-2 (Va. App. Sept. 30, 2025) (unpublished). What is clear is that if your Virginia trial judge does not grant your suppression motion, talk with your criminal defense lawyer about whether to challenge the matter on appeal in the event of a conviction at the trial court stage of your case.

Watch out for police grasping at straws of nervousness and other no stronger factors to try to justify a search that violates the Constitution’s Fourth Amendment

The Constitution’s Fourth Amendment 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.” Whether or not any police officers, prosecutors and judges are hostile to the Fourth Amendment, they are obligated to obey and uphold the Constitution, as part of their oath. With Henry, police stopped his car for expired tags / license plates. (Important tip- If you are going to justify a police stop so easily, be ready for a criminal law issue if you are simultaneously possessing any contraband.) After witnessing Henry’s nervousness, law enforcement (LE or LEO) called for a drug dog / canine, and obtained Henry’s consent to search his pockets, which yielded. After finding torn lottery receipt forms in plain view and by a consent search of Henry’s pockets; Police ultimately arrested Henry. At the jail,  “officers found a bag of 50 more pills in Henry’s underwear. The pills later tested positive for methamphetamine.” For his charge of possession with intent to distribute a Schedule I or II controlled substance, Henry entered a conditional guilty plea, that enabled him to appeal his case, at least to argue the legality of the search that yielded the methamphetamine.

Am I clear of a criminal prosecution for mere nervousness?

As an unpublished opinion, Henry has no binding effect on any trial courts nor other appellate courts, rather than affecting Henry himself. Consider, then, Henry‘s following depiction of published Virginia appellate caselaw: “Excessive nervousness is certainly a factor that an officer may rely on in support of a probable cause determination. See Buhrman v. Commonwealth, 275 Va. 501, 507 (2008). However, nothing about Henry’s demeanor counselled that he might be armed or otherwise in possession of illegal substances: rather, he displayed nervousness one might expect of a young man being pulled over by police.”

Does possession of otherwise lawful material that is popular for packaging for illegal drug trafficking plus nervous behavior justify an arrest?

Wonderfully, Henry declines to transform his nervousness, possession of torn lottery ticket forms, and possession of a large amount of cash to permit his arrest. Henry says this about lawful material that is popular for packaging illegal drugs: “There is no evidence that the play
slip had visible drug residue or that it was unusual in any way other than being torn. Needless to say, a torn piece of cardstock does not by itself indicate illicit activity. Indeed, in the past we have repeatedly declined to find probable cause where the suspect was found with similarly incriminating materials. See Cauls, 55 Va. App. at 90 (a folded dollar bill and a plastic bag); Grandison, 274 Va.at 316 (a dollar bill in an “apothecary fold” and a segment of a drinking straw); Snell v. Commonwealth, 275 Va. 472, 473 (2008) (per curiam) (a tightly folded dollar bill); Brown v. Commonwealth, 270 Va. 414, 419-21 (2005) (a hand-rolled cigarette); Harris v. Commonwealth,
241 Va. 146, 154 (1991) (a film canister).” Henry. If you are going to get arrested for a drug offense, be ready to fully argue your Fourth Amendment rights. If you are fortunate, doing so will yield success, as it ultimately did for Henry.

Fairfax criminal lawyer Jonathan Katz looks beyond any initial impressions of challenges to winning a case, to finding the alternative story and creative arguments on the road to pursuing your best defense against Virginia felony, misdemeanor and DUI prosecutions. A criminal conviction can risk your liberty, reputation, livelihood, and such critical collateral factors as your security clearance. You take a great step in protecting your rights by meeting with Jon Katz for your free in-person strictly confidential initial consultation about your court-pending Virginia prosecution.