Police searches for contraband- Fairfax criminal lawyer addresses when such searches are allowed and not

Police searches (PCs) for contraband are part of their stock in trade. As a Fairfax criminal lawyer, I constantly pursue ways to invalidate PCs and the fruits of those searches. One thing that would repeatedly confound me — at least if not so commonplace — is how often people with contraband make themselves sitting targets for cops to find the contraband. A case in point is Nakia Durham’s conviction  for unlawful firearm possession that followed a motor vehicle stop for the owner’s being listed as having a suspended driver’s license. (The Supreme Court, unfortunately, allows such stops, whether or not the owner is the driver.) Durham v. Commonwealth of Virginia, ___ Va. __. (Aug. 1, 2024).

Beware of police searches that are made lawful by your waiver of your Fourth Amendment right against nonconsensual searches lacking probable cause

In Durham, police stopped the vehicle that Nakia Durham owned and was driving, having learned that the vehicle’s owner (defendant Nakia Durham) had a suspended driver’s license. Police claimed smelling an odor of alcohol in car, asking about it, and voluntarily receiving the cup from Durham, which revealed a beverage smelling of alcohol. Once that happened, it was curtains for Durham to have any real chance of successfully challenging the ensuing PC of Durham’s vehicle — as with any similar police searches — which revealed an unlawfully possessed firearm: “Once inside the passenger compartment, Officer Labat could search every part of the vehicle that might conceal the objects [unsealed alcohol containers] of his search… This allowed him access to the center console, as he reasonably thought that it could contain small, single serving bottles of alcohol that he referred to as ‘miniatures.’ It was when Officer Labat pushed the button unlatching the console that he encountered the revolver. Overall, these facts when taken in the light most favorable to the Commonwealth create a picture consonant with the requirements of probable cause and without offense to the Fourth Amendment.” Durham. 

Does presence of unsealed alcohol automatically permit police searches in Virginia

Merely possessing an unsealed alcohol container is not enough to permit police searches in Virginia, let alone a conviction. The law allowing PCs  of a vehicle for alcohol comes from that “a rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed, and (iii) the appearance, conduct, odor of alcohol, speech, or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.” Virginia Code § 18.2-323.1 .

Was Durham’s conviction a foregone conclusion

Even if police searches under circumstances similar to Durham’s do not lead to judicial barring of the discovered evidence, that still left Durham able to challenge whether he possessed the concealed handgun found by police in Durham’s center console, in that merely having the handgun present does not automatically mean he knew the handgun was present. “In order to prove possession, the Commonwealth must show ‘that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.’” Beal v. Virginia, Record No. 0266-21-3 (Va. App., 2022). I call this the knowledge, dominion and control test for Virginia contraband possession prosecutions.

Don’t let a prosecution paralyze you. Contact Fairfax criminal lawyer Jonathan Katz for your free in-person completely confidential initial consultation about your court-pending case. By the time you finish your meeting with Jon Katz, you will feel more knowledgeable and confident about your defenses. Contact us at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7268. To get acquainted in advance with Jon Katz, visit our Beat the Prosecution podcast and our Virginia criminal law blog.