Virginia LEO do not automatically get the right to search merely by observing an unsealed alcohol bottle and a little bit of drug contraband

Virginia LEO (law enforcement officers) do not automatically get the right under the Constitution’s Fourth Amendment to search a car or other place merely for seeing an alcohol bottle that is not sealed together with some drug contraband, because that is not probable cause by itself to believe that more contraband will be found through a search, nor that the driver of a car with such items has consumed either or both. As a Fairfax criminal lawyer, I read with delight when the Virginia Court of Appeals issued such an opinion, albeit unpublished (and therefore not binding) and with a dissenting opinion. Branch v. Commonwealth of Virginia, Record No. 0132-22-1 (Va. App., June 21, 2022) (unpublished).

Does this mean that I am safe from Virginia LEO snooping around my car if they find nothing but an unsealed liquor bottle and a little bit of illegal drugs?

Whether or not probable cause exists to search a suspect’s vehicle or other property depends on the unique totality of the circumstances. Jones v. Commonwealth, 279 Va. 52, 60, 688 S.E.2d 269, 273 (2010). Consequently, do not be lulled by the Virginia Court of Appeals’s non-binding, unpublished Branch opinion into thinking that you are safe from a police search when accompanied by an open container of beer, wine or alcohol and/or with illegal drugs. Instead, expect resistance from many Virginia trial judges to such an idea, and anticipate that they will rely on the Branch dissent to anticipate that this unpublished opinion is a fluke. At the same time, I will be ready to argue that the reasoning of the Branch majority makes the most sense, and that this opinion is persuasive to be applied by Virginia trial and appellate judges. In Branch, after making a traffic stop, the Virginia LEO in plain view saw a liquor bottle and “saw the cap of the bottle was screwed on but noticed the bottle had some liquid missing.” In addition, this being when marijuana was still unlawful civilly to possess, the passenger admitted to having some marijuana (apparently recently purchased and maybe from the same neighborhood) on her, which the police officer saw as she went through her wallet to produce her identification to the cop.

If Virginia LEO observes some crumbs of crack or a little bit of apparent powder cocaine on a car occupant’s lap, do they get the greenlight to search the car?

The Branch Virginia Court of Appeals opinion ably answers the dissent’s belief that the discovery of any drug contraband possessed by a car passenger justified Virginia LEO searching the entire vehicle: “The dissent notes cases from other states that upheld searches based, in part, on the presence or smell of decriminalized or legal marijuana. But these cases do not suggest officers are automatically entitled to search a vehicle on this basis. Officers must have probable cause to believe that other contraband or evidence of a crime will be found in the vehicle, evaluating the totality of circumstances. See People v. Hill, 162 N.E.3d 260, 268 (Ill. 2020) (holding that the facts established probable cause when the defendant delayed in pulling over, and an officer saw a loose ‘bud’ in the backseat and smelled a strong odor of marijuana); People v. Zuniga, 372 P.3d 1052, 1060 (Colo. 2016) (holding that the facts established probable cause when the driver and the defendant gave inconsistent stories and were ‘extremely’ nervous, there was a ‘heavy odor’ of marijuana, and a K-9 unit alerted to the back of the vehicle). This case does not present similar, suspicious circumstances supporting a belief there was other contraband inside the vehicle.”Branch.

What do I do if charged with a Virginia drug offense?

Virginia LEO is on the constant lookout for drug offenses. The penalties for such offenses can be harsh when not merely for a first time alleged drug possession offense, particularly if the defendant gets convicted for drug dealing combined with simultaneous possession of a firearm. If you are charged with a Virginia drug offense, other criminal violation, or DUI offense, call Fairfax criminal lawyer Jonathan Katz at 703-383-1100 for you free in-person confidential consultation with Jon Katz about your court-pending case.