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Seven lessons from a post-traffic stop conviction

Sep 03, 2010 Seven lessons from a post-traffic stop conviction

Two nights ago while I was about to make a U-turn around a blocked-off street while police searched the Discovery Channel building after James Lee had already been killed, a woman crossing the street in front of me started asking if I could give her a ride. I said that I do not give rides to people I did not know. She responded: “Get going, then.” 

Good reasons exist for refusing to give strangers rides: Protection against robbery and assault; and avoiding problems with the passenger if stopped by police for speeding or another moving violation, including passengers with drugs or weapons who throw the contraband to the driver’s side of the car when stopped, or who leave the contraband on the passenger’s seat or elsewhere nearby when asked to get out, leaving the police to arrest everyone in the car for the contraband. 

Curiously, this was the first time in many years that a stranger had verbally asked me for a ride (as opposed to hitchhikers asking with their thumbs), and just earlier that day I had read the previous day’s Virginia Court of Appeals opinion -— discussed further below — that re-underlines the risks of riding in cars with risky people. Atkins v. Com., ___ Va. App. ___ (Aug. 31, 2010). 

Appellant Kentora Atkins was a passenger in a vehicle stopped for having a burned-out license plate bulb. Lesson one: Beware riding in a car with equipment defects that allow a traffic stop. 

A police officer asked Mr. Atkins for his identification. Mr. Atkins first said he had none, and then handed over identification. Lesson two: The United States thankfully has not gotten as bad as European countries and other countries that require people to carry identification papers. Except for drivers, who are required to carry drivers’ licenses while driving, non-drivers have no obligation to carry identification, nor to display identification to the police. 

The traffic stop got longer when the police hit on open arrest warrants for another passenger. Lesson three: Police might be empowered to detain everyone in a vehicle during a moving violation stop, including the time period that the police are checking for other occupants’ open warrants. That is another reason to beware whom you drive with in a car. 

During the traffic stop, police officer Gallacio: 

[O]bserved appellant bobbing up and down in the car as if he was bending over the seat. Then, appellant began to behave strangely as soon as he was removed from the car. His hands were balled into fists and he continued to move in circles, ultimately in the direction of the police vehicle. Appellant’s arms indicated he was a heavy drug user; his manner was very nervous. He did not comply with Special Agent Gallaccio’s request to remove his hands from his pockets. See Walker v. Commonwealth, 42 Va. App. 782, 792, 595 S.E.2d 30, 35 (2004) (finding appellant’s refusal to remove his hand from his pocket is a factor to be considered in finding reasonable suspicion).

Atkins concluded: “Given appellant’s behavior and demeanor, Gallaccio had objective facts sufficient to give him reasonable suspicion to stop appellant and investigate further.” 

Lesson four:  Beware having needle marks exposed for the police to see. In the presence of police, beware bobbing up and down, bending over carseats, balling fists, moving fists in circles, and putting hands in pockets. 

Unfortunately, when Atkins allegedly struggled with a police officer after being told a weapons patdown was coming, he allegedly dropped a container of heroin. Lesson five: Police love when contraband drops from a person without the police having conducted any patdown or more intrusive search, possibly making the contraband harder to suppress. 

Also unfortunately, the police found weapons in the car (Atkins gives Mr. Atkins no standing to challenge the car search). He got convicted of the weapons, too. Lesson six: Possession of contraband is defined as knowledge, dominion and control, which allows for joint possession even for those who have never touched the contraband. 

Lesson seven: Atkins was prosecuted and convicted in Virginia, where the jury recommends a sentence if the defendant is convicted, and where appellate caselaw for criminal defendants is generally less favorable than Maryland’s criminal appellate caselaw. Does that mean that criminals are going to immigrate to Maryland as a more hospitable place to commit crime? No. It does mean that Mr. Atkins may have gotten a geographic disadvantage from being prosecuted in Virginia rather than in Maryland. 

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