Virginia Criminal Law Case Outline: Fourth Amendment Cases

The following is an outline of Fourth Amendment case law, with an emphasis on Virginia.  The outline is copied from the Fourth Amendment section of an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC.  Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations.  Questions regarding the abbreviations, or case cites, can be sent to




Knight, COA, published December 18, 2012.  D’s leaving a bag in a security office did not constitute abandonment for Fourth Amendment purposes, but largely because there were minimal findings of fact in trial court and trial court did not hear abandonment issue.  Discusses case law.

Anonymous Tips


Byrd (published, COA, October 23, 2007)- CI told investigator that D was selling heroin on corner.  Investigator said that he never knew CI to give unreliable info.  Arresting officer saw D at same corner, dressed like CI said he would be. No evidence that CI saw a sale.  Courts examine arrests following tips using totality of the circumstances.  If a tipster is unusually reliable, a lack of specific info in one case may not matter in light of the reliability.  Also consider whether tip is based on personal observation, if not, the tip can be so detailed that, if corroborated, that could overcome lack of personal knowledge.  Here, there was no indication that the CI was unusually reliable, and the details he provided were not details concerning something that would happen in the future, in which case corroboration of those details would show that tipster had to have had inside information.


Goodman (unpublished COA, October 16, 2007)- although tip that D was selling a firearm on a street corner was reliable, it did not furnish RAS because it gave no indication that D was unlawfully in possession of a firearm or committing any other illegal act.  Knowledge that D was selling the firearm in a high-crime, high-drug area, is irrelevant.

Can conduct Terry stop and frisk only if 1) rightly in the presence of a suspect and 2) officer develops reasonable suspicion that the suspect is armed and dangerous.


Harris (unpublished, COA, February 5, 2008)- officer received dispatch describing a suspected DUI, providing information about the car, the direction and the road, as well as the name of the driver and a partial plate. The dispatch did not provide a source for the information.  The officer saw the described vehicle, with a similar license plate and while the vehicle didn’t swerve or depart from the speed limit, the officer felt the vehicle braked erratically and initiated a stop.  Information from an anonymous source can be sufficiently corroborated such that it can provide RAS even if it would be insufficient to provide probable cause.  In addition, the predictive aspects that are often necessary for corroborating an anonymous tip are less applicable to open and notorious criminal behavior.  Officer in this case had sufficient corroboration.


When dealing with an anonymous tipster, the basis for the tipster’s knowledge and his veracity or reliability are highly relevant factors re: RAS.  Predictive information can bolster the tip’s indicia of reliability.  However, for such predictive information to bolster the tipster’s credibility, the information must relate to the alleged criminal activity because providing information observable to anyone is not predictive information.  An anonymous call without predictive information leaves the police without a means to test the tipster’s knowledge or credibility.  An anonymous tip need not include predictive information when an informant reports readily observable criminal actions.  The tip in this case did not contain sufficient indicia of reliability, and the officer’s observations were not enough to establish RAS.

Lawful conduct that the officer may subjectively view as unusual is insufficient to generate a reasonable suspicion that the individual is involved in criminal activity.


Robinson, COA, published April 14, 2009- Officer received information for registered CI about imminent drug transaction.  CI had provided that officer with information leading to three arrests, and the officer had knowledge that CI helped other officers make five arrests.  No evidence whether CI had ever provided false information.  CI said “Antoinette” had the cocaine, which the CI had personally observed, and described her car, including license plate, and said she was going to a specific store to sell cocaine.  The officer and another officer surveilled the store, watched D park at a pump, enter the store, walk outside, talk to a man, reenter the store and walk back to her car.  They watched the man walk past D’s car, then return and lean up against driver’s side door.  They did not see a hand-to-hand, but D drove away without pumping gas.  Officers stopped D’s car and arrested her and discovered cocaine during a search incident to arrest.

The issue was whether the officers had PC to arrest D.  The Court found that the officers had PC: the CI had proved reliable in the past, he claimed to have observed the cocaine that night and provided detailed, predictive information that the officers corroborated.  In addition, the officers observed suspicious behavior consistent with the CI’s information.  Under the totality of the circumstances, the officers had PC to arrest D.


Anticipatory Search Warrants


Ford, COA, published January 26, 2010- agent found suspicious package addressed to D’s home address.  Probed box and located m/j.  Obtained ASW.  An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.  Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time—a so-called ‘triggering condition.’  If the triggering condition is not satisfied, the warrant is void.  “The use of anticipatory warrants in situations where drugs or other illegal items are in transit through either the mail or via private delivery company was recently confirmed as constitutional” by the Supreme Court in Grubbs.


Automobile Exception


Duncan, COA, published November 10, 2009- D stopped for equipment violation.  D behaved nervously and initially denied having drugs or weapons in the car.   D did not consent to a search of the vehicle, but because D’s license was suspended and no one else was in the car, officer removed D from the car to have it towed.  Court found that vehicle was not interfering with traffic.  Before getting out of the vehicle, D told officer there might be a gun under the seat.

COA upheld search on grounds that officer had PC to search car to look for a concealed weapon.


Collins, VSC, published September 15, 2016.  D suspect in two motorcycle eludings.  When questioned, D denied having ridden a motorcycle recently.  Later, police discovered a motorcycle covered by a tarp in a driveway.  Officer testified that its wheel matched description of motorcycle in the eludings and positioned in same way as found in Facebook posts.  Officer walked up the driveway and uncovered the bike.

“In cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.”  The Court held that the automobile exception applied because 1) the bike was contraband, 2) the exception doesn’t require the vehicle to be mobile, and 3) the exception may apply to vehicles parked on private property.




Desposito, COA, published June 5, 2012.  Good summary of case law regarding officers’ discretion.


Community Caretaker


Knight, COA, published December 18, 2012.  D approached officer in mall security office, told her he’d been in a fight with his girlfriend, and asked her to come out and calm her down.  D left backpack containing gun in the office.  While officers were on scene in the parking lot, officer located and opened the bag, finding the gun.  The community caretaker exception requires that an officer have an objectively reasonable belief that his conduct in searching a closed container, such as the backpack here, is necessary to provide aid or to protect members of the public from physical harm.  For a warrantless search of a closed container to be upheld as permitted within the Fourth Amendment, the warrantless entry must be “totally divorced” from a criminal investigation.  Opinion lists factors for courts to consider.


Ross, COA, published April 16, 2013.  D subject of custody case home study.  Social worker concerned that D had firearms and that children may have been exposed to the firearms.  SW went to D’s house and D was trying to avoid letting SW in the house.  Commonwealth conceded that there was no PC that D was about to commit crime.  D ran in house and police followed, finding weapons that led to D’s prosecution.  COA held that there was insufficient evidence to justify CC exception.


Consent- Traffic Stops


Jones (unpublished, September 4, 2007)- valid consent where officer asked whether he could search D’s vehicle, “yes or no”, citing Lowe (handcuffed, in custody and surrounded by handcuffs didn’t render consent involuntary because search form explained and no weapons drawn).


Malbrough (VSC, January 11, 2008)- D’s vehicle stopped for traffic infraction.  Weapon recovered and not returned.  Three officers were present, with two cruisers flashing lights during the entire encounter. After end of traffic stop, when officer had returned to D his license and registration and told D he was free to leave, officer asked D if he could search his person.  D began reaching into his pockets.  Officer told him not to do that, and that he would do the searching.  D said “all right” and officer recovered drugs.  Reasonableness standard for evaluating consent presumes an innocent person, and not one laboring under a consciousness of guilt.  No evidence of physical restraints, and officers had told the occupants of the vehicle that they had no reason to detain or question them further.


Farrior (Fourth Circuit, August 5, 2008)- summarizes law governing consent following traffic stops.


Arizona v. Johnson (USC, published January 6, 2009)- questioning about matters unrelated to the reason for the traffic stop to not turn the encounter into something other than a lawful seizure, as long as the questions don’t measurably extend the period of the stop.  Since the pat down that led to the weapon’s discovery occurred during a conversation that followed within seconds the officer removing Johnson from the vehicle, there was not enough time in between to create a consensual encounter.  The lower court had held that, because it was a consensual encounter, there was no justification for the officer to conduct the patdown.  The Court did not hold that there was justification, just that the lower court’s reasoning that it was a consensual encounter was in error.




Collins (unpublished, September 28, 2007)- officer flashing his flashlight in D’s eyes and asking if he could speak with him was not a seizure.  Failure to tell D that he was free to leave did not make it a seizure.


Thomas (unpublished COA, October 16, 2007)- no error in holding that D consented to search where officer testified that he’d holstered his taser prior to asking for consent, and that D was calm and cooperative, a state of mind inconsistent with fear of the taser, when D consented.  D testified that he didn’t give consent.


Middlebrooks (COA, published August 5, 2008)- D cited for public urination.  Officer leaves and then watches D continue to mill about parking lot in high crime area.  Office approaches D again, and D refuses consent to search the car.  Officer then told D he was going to have a drug dog out to run his car.  At that point, D said there was weed in the car.  D was seized at this point, because no reasonable person would have felt free to leave.


White, COA, published May 10, 2016. Once valid consent is received, law enforcement may search until the individual engages in an “unequivocal act or statement of withdrawal.” See Lawrence v. Commonwealth, 17 Va. App. 140, 146, 435 S.E.2d 591, 594-95 (1993) (quoting United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991)), aff’d, 247 Va. 339, 443 S.E.2d 160 (1994) (per curiam).

Assuming that the appellant’s physical resistance to the search, standing alone, constituted an unequivocal withdrawal of his consent, we hold that the withdrawal came too late because an officer may search a suspect and seize evidence from his person even without consent if the officer has probable cause to believe that the suspect possesses contraband.


Consent by Conduct


Hawkins, COA, published August 4, 2015- D confronted on the street by officers during drug investigation.  One officer noticed a large bulge by D’s belt.  Officer asked if D would mind lifting his shirt so he could see what was under the shirt.  D didn’t say anything, but lifted his arms up and didn’t say anything for five seconds.  Officer lifted shirt and found a gun.

Consent to a search . . . must be unequivocal, specific and intelligently given . . . and it is not lightly to be inferred.’  Consent, however, may be evidenced by conduct alone. “Courts have found consent to a specific request to search a person when evidenced by conduct alone, such as turning and ‘placing one’s hands against the wall without prompting,’ or shrugging one’s shoulders and then extending one’s arms.” Id. at 79, 538 S.E.2d at 318 (emphasis omitted) (quoting Bynum v. Commonwealth, 23 Va. App. 412, 417, 477 S.E.2d 750, 753 (1996)). Nevertheless, an appellant’s mere acquiescence to a search is inadequate to establish that he or she voluntarily consented to it, and the Commonwealth bears a heavier burden “‘where the alleged consent is based on an implication.’” Id. at 78-79, 538 S.E.2d at 318 (quoting Walls v. Commonwealth, 2 Va. App. 639, 645, 347 S.E.2d 175, 178 (1986)).

COA found that D consented based on his actions, as well as his later statement that he showed the officers he had a gun, which showed he’d made a conscious decision to consent to the search.


Consent to Search


Fernandez v. California, US Supreme Court, published.  Police investigating robbery went to apartment.  When they arrived, a woman answered the door with injuries.  D later appeared and said police couldn’t enter.  D arrested for assault. One hour later, the woman gave consent to search.

Georgia v. Randolph doesn’t apply to a case where the police obtain consent from a co-occupant long after the objecting party has been removed.  The Court noted that the opinion in Randolph stressed the importance of the physical presence of the objecting occupant.


U.S. v. Saafir, 4th Circuit, published, – D stopped for infraction.  Officer noticed flask, but never determined whether alcohol was in it.  Officer tried to talk D into consenting to search of the car.  Officer told D he had PC to search based on flask.  D said there might be a gun. Officers searched car and found gun.

Issue was whether officer’s false assertion that he had PC to search tainted D’s admission.  “We hold that the officer’s assertion that the existence of the hip flask provided him with probable cause to search the car was an independent, antecedent threat to violate the Fourth Amendment that ultimately fatally taints the search of the car and the seizure of the gun.”  A search is unconstitutional if it is premised on an officer’s misstatement of his authority.


Emergency Doctrine/Exigent Circumstances


Stallings (unpublished, December 18, 2007)- the Fourth Amendment permits officers to make a warrantless entry and search when they reasonably believe that a person within is in need of immediate aid to protect the person’s life or against serious injury.  This includes protections against threatened violence.  Whether the invocation of the doctrine is pretextual is irrelevant.  Warrantless entry was objectively reasonable when D’s sister told investigator that D’s daughter called her and said she was scared because D was shooting guns inside the house; that D’s sister had gone to the house and D had pointed a gun at her, and that no one responded when the investigator announced his presence.


Robertson (VSC, April 18, 2008)- g/f called police to say that D was threatening suicide, and while on phone with 911 she heard two shots go off.  Police arrived to find g/f outside, while D was cursing at officers and said he had fired his gun and hit it with him.  Police finally tased him.  When he was escorted from the house he told them that no one else was in the house.  No one consented to search of the house, and the police made a warrantless entry, which resulted in recovery of incriminating evidence.  At motion to suppress, there was no evidence that police had suspicions that anyone was left in the house.  Court listed 10 factors to be considered to be determined whether exigent circumstances exist: 1) degree of urgency and time required to get a warrant; 2) reasonable belief that contraband is going to be destroyed; 3) possibility of danger to others, including officers guarding the place to be searched; 4) information that possessors of contraband are aware that police are on their trail; 5) seriousness of offense and/or whether it involves violence; 6) reasonable belief that suspects are armed; 7) whether at time of entry there is a clear showing of PC; 8) belief that suspects are actually present; 9) likelihood of escape if suspects are not quickly apprehended and 10) suspects’ recent entry into premises after hot pursuit.  Facts of case did not support warrantless entry under this doctrine.


West, COA, published July 14, 2009- V made report of sexual assault.  She described the assailant’s clothing and said that she bit the assailant’s lip when he tried to kiss her.  V said that her neighbor, D, “came to mind” as a possible suspect.  Police went to his house, D answered the door and tried to hide his body from view, but police saw he had a freshly bleeding lip.  D tried to close the door when police said they needed to talk to him about a crime in the neighborhood, but the police said they needed to come in.  Commonwealth didn’t argue that D invited police in the house.  Police seized incriminating evidence while inside the house.

The court listed the factors involved in exigent circumstances analysis and also noted that the seriousness of the offense is relevant.  The Court found that exigent circumstances existed in this case to justify the warrantless entry into D’s house.


Brigham City v. Stuart, 547 U.S. 398 (2006).


Michigan v. Fisher, USSC, published December 7, 2009- applies Brigham City to find that police had justification to enter house.


Smith, COA, published August 3, 2010-  police received tip that people dealing drugs inside residence.  Officer arrived within ten minutes and knocked on door.  D partially opened door and officer observed another man run out the back with a white object in his hand.  Officer pushed his way inside and apprehended that man in a back room. While leading D back, he observed item that led to D’s prosecution in plain view.  COA held that officer reasonably believed that object was illegal drug.


Ross, COA, published April 16, 2013. D subject of custody case home study.  Social worker concerned that D had firearms and that children may have been exposed to the firearms.  SW went to D’s house and D was trying to avoid letting SW in the house.  Commonwealth conceded that there was no PC that D was about to commit crime.  D ran in house and police followed, finding weapons that led to D’s prosecution.  COA held that there was insufficient evidence to justify emergency exception.


Collins– COA, published July 21, 2015. Officer observed motorcycle with distinctive features during eluding pursuit.  Sources led officer to discover motorcycle partially covered with tarp in front a residence.  Officer could observe distinctive features from the road.

COA held that officer had PC to link motorcycle to incident. COA assumed motorcycle was within the curtilage.

COA listed exigencies: the mobility of the motorcycle; that D knew police were investigating; that D had lied to police; tarp placed over motorcycle in time since D questioned; COA cited facts occurring after the search to justify reasonableness



Expectation of Privacy


Megel, 262 Va. 531 (2001)- society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell. Accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.


Bell v. Wolfish, 441 U.S. 520 (1979)- upheld room search of pretrial detainees.  In that case, the Court assumed, arguendo, that a pretrial detainee retained at least a diminished expectation of privacy.


U.S. v. Cohen, 796 F.2d 20 (1986)- distinguishes pre-trial and post-trial detainees.  In Gheorghiu, the VSC declined to discuss the case, because even if there were error in failing to suppress evidence stemming from a room search, it was harmless error.


Watts, COA, published – D parked car on slab of concrete containing unmarked parking spots and walked away from the car.  D then had “consensual encounter” with police, admitted car was his, he’d just bought it and that he didn’t have a license.  Officer observed a bulge he believed was a firearm and told D he was going to pat him down.  D fled and officer couldn’t catch up.  Officer decided to tow the vehicle, and noticed something unusual in the console.  Officer found drugs and charged D.

A person may abandon his expectation of privacy in property.  Although the individual whose property was searched bears the burden of proving a legitimate expectation of privacy in the item searched, the burden of proving abandonment is on the government.  Settled principles provide that one lawfully in possession of a motor vehicle has a legitimate expectation of privacy in the vehicle and its contents.

A person’s “intent to retain a reasonable expectation of privacy” [governs] whether the property has been abandoned . . . [and] is to be determined by objective standards.  The determination of this intent must be made after consideration of all relevant circumstances, but two factors are particularly important: denial of ownership and physical relinquishment of the property.  Court held that Commonwealth failed to meet its burden to prove that D abandoned his expectation of privacy.


Redmond, COA, published November 16, 2010- officer posed as buyer in entering house listed for sale with a realtor.  While there, officer viewed evidence that formed basis for search warrant that led to D’s conviction.


Sanders, COA, published May 26, 2015. Drug dog sniffed outside D’s motel room.  D challenged search warrants based on dog alerts.  COA held that D lacked objective expectation of privacy in the walkways outside his motel room.  Discusses factors to determine whether an area is within the curtilage.


White, COA, published May 10, 2016.  Officers searched motel room following arrest of D for possession.  Occupant, D’s girlfriend, consented to search of the room.  Officers searched D’s bag.  D found to have reasonable expectation of privacy in his bag even though he conceded that he lacked a reasonable expectation of privacy in the room.


Fruit of the Poisonous Tree


D arrested for A&B and taken to jail.  Drugs found during search at the jail.  D argued that the warrantless entry into his house was unlawful, and that the resulting arrest led to discovery of the drugs, which should be suppressed as FOPT.  COA assumed that search was unlawful, but said the link between any unlawful search and the discovery of the drugs was too attenuated to justify exclusion.

But-for causation is decidedly not the test used to determine whether evidence is tainted by an unconstitutional search or seizure such that suppression is an appropriate remedy.  The opinion listed factors that could dissipate the taint.



Good Faith Exception


Adams (VSC, February 29, 2008)- during a murder investigation, the investigator.  The good faith inquiry is confine to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.  Courts may examine all of the surrounding circumstances, including the criminal complaint, to determine whether a reasonable officer would have known that the search was illegal.  Courts can, and should, look at what the officers knew but did not include in the affidavit when conducting the good faith analysis.  However, the totality of the circumstances do not include the subjective beliefs of officers.

An officer’s decision to obtain a warrant is prima facie evidence that he or she was acting in good faith.  In addition, the standard of an objectively reasonable officer is a significantly lesser standard than the “substantial basis” standard for upholding a magistrate’s determination of probable cause.  The standard prevents a finding of good faith only when the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.  Also, officers are not required to go around the magistrate’s analysis to determine probable cause.  The good faith exception applied to a warrant.


Conyngham (COA, unpublished December 8, 2008)- suppression motion granted where search warrant executed at address two years after tip that led to investigation.  Affidavit had wrong date of the tip (2 years off), and no evidence showing that the pornographic images were uploaded at the address.  Evidence seized pursuant to a warrant that is later found to be invalid will only be suppressed in those rare situations where exclusion will further the purposes of the exclusionary rule.

Good faith exception does not apply in four situations: 1) where magistrate misled by information that affiant knew was false or should have known was false; 2) issuing magistrate totally abandoned his judicial role; 3) there was a “bare bones affidavit”; 4) where warrant was so facially deficient that an executing officer could not reasonably assumed it was valid.  The exception did not apply in this case because the officers showed a reckless disregard for the truth.


U.S. v. Williams (4th Cir. 1996)- affidavit based largely on anonymous tip was “bare bones.”  The good faith exception didn’t apply.


U.S. v. Williams (4th Cir., December 3, 2008)- two search warrants for two residences related to drug conspiracy turned up evidence sought to be admitted at trial.  Defendants argued evidence should be suppressed because search warrant not supported by probable cause, and the good faith exception didn’t apply.  The affidavit detailed evidence related to the conspiracy, did not include any evidence linking the crimes to the residence, but the affiant did stated that based on his training and experience, drug deals “tend” to keep drugs, currency, etc., at their residences.  The Court found that the good faith exception applied, and quoted another case for the proposition that “it is reasonable to suspect that a drug dealer stores drugs in a home to which he owns a key.”

The case also discusses the reasonableness of inferring from the detailed investigation that the affiant had a basis for concluding that the residences belonged to the defendants.


Midkiff, COA, published June 30, 2009- D convicted of possession of child porn.  Officers executed search warrant at his house in August 2006.  Search warrant based on information recovered from an April 2005 subpoena that indicated he’d downloaded images to his computer 16 months before the search warrant.  Trial court found that affidavit was stale, but that the officers relied in good faith on the search warrant’s validity.

Judicial role- trial court found as a fact that the magistrate read and understood the affidavit, so it was not error to find that the magistrate maintained his neutrality.

Lack of indicia of probable cause- D focused on geographic and temporal nexus.  As long as there is some indicia of PC, courts will apply the good faith exception.  Trial court did not err in finding that officer reasonably believed that images would still be on D’s computer.  Furthermore, affidavit specifically linked the IP address to D’s physical address.  Although there was no information indicating during what time IP address was assigned to D’s physical address, the slight nexus was sufficient for application of good faith exception.


Independent Source Rule


Segura v. United States, 468 U.S. 796 (1984).


Inevitable Discovery


Marzette (unpublished, November 27, 2007)- following unlawful pat-down that resulted in the officer discovery a gun, it was discovered that D had an outstanding warrant.  To satisfy the inevitable discovery doctrine, Commonwealth must show 1) a reasonable probability that the evidence would’ve been lawfully discovered but for police misconduct and 2) that the police had the leads necessary to make discovery inevitable when misconduct occurred.  There evidence showed that officer did not have PC to arrest D for trespassing, because the only evidence was that he was in an apartment complex where he didn’t live.  In addition, there was no evidence that police routinely run records under these circumstances.


Inventory Searches


Illinois v. Lafayette, 462 U.S. 640 (1993)- inventory searches may be conducted at locales other than the scene.  In this case, police conducted the search at the police station.


Fauntleroy, COA, published July 30, 2013.  Car with stolen inspection sticker was lawfully impounded.


Mistake of Law


Heien v. North Carolina, USSC, published December 15, 2014.  Car stopped for having only one functioning brake light.  The opinion assumed that the NC code only required one brake light but that a reasonable officer could have read the code and believed it required two.  The Court emphasized that it must be an objectively reasonable mistake of law- the officer’s subjective interpretation is irrelevant.


PC for Arrest


Carter (unpublished, September 18, 2007)- officer had PC to arrest D for state statute of drunk in public, which validates warrantless arrest, even though he charged her under narrower city ordinance because the absence of PC to believe that a suspect committed the particular crime for which he was charged does not necessarily invalidate the arrest if the officer possessed sufficient evidence to justify an arrest for a different charge.


Burhman (VSC, April 18, 2008)- no PC to arrest D, who was acting intoxicated in a high-drug area, when the opened her car door displaying what appeared to the officer to be marijuana cigarettes.


Perry, COA, published November 3, 2009- D passenger in car stopped on side of the highway in a well-lit area.  Trooper noticed that one passenger was visibly impaired, and trooper suspected he was on PCP, which caused him concern for his safety.  That passenger later dropped a vial that field-tested positive for PCP and passenger admitted to using PCP.  D was in similar condition.  Trooper conducted a pat-down search and felt a bulge “consistent with” the other passenger’s vial.  Trooper asked D to show him what was in his pocket, and D produced a vial, said it was marijuana (it also contained PCP) and admitted to smoking PCP.

Trial court overruled suppression motion under Terry.  However, COA applied right result/wrong reason and determined that trooper had PC to arrest D.


PC re: drugs in a car


Dodd (published August 28, 2007)- officers had PC to arrest D for possession of cocaine where drugs found in vehicle, driver admitted ownership of some contraband but denied these drugs, D was only other recent occupant of vehicle, sat next to console where drugs found and said he had tools in vehicle, and unlikely a third party had left drugs in the vehicle, encountered D in high crime area, saw a suspicious transaction and D had large amount of cash.


PC- Informant Tips


U.S. v. White (4th Cir. published December 12, 2008)- discusses the major cases.


PC- Odor


Cherry, 44 Va. App. 347 (2004)- “the detection of the odor of burning marijuana emanating from the open door of a residence, by a credible law enforcement officer who is familiar with its smell, provides that officer with probable cause to believe contraband is present inside the residence.”


Bunch, 51 Va. App. 491 (2008)- “plain smell doctrine.”


PC- Proximity to Suspects/Evidence


Whitehead, VSC, September 18, 2009- D a passenger in a lawfully stopped car.  Drug dog alerted on car.  Car and other three passengers searched and no drugs found.  VSC held that there was no particularized probable cause to justify searching D.


Plain Feel


Cost (VSC, February 29, 2008)- D consented to a pat-down but not a search.  Officer felt capsules in D’s pocket, and then reached in D’s pocket and retrieved the pills.  D charged with PWID heroin.  At suppression hearing, officer testified that he knew that he didn’t feel a weapon, but that he “knew” that he felt heroin because that’s how heroin is packaged.  Each case must be determined under the totality of the circumstances, and an officer is justified under the plain feel doctrine if he can identify the object as “suspicious”.  This must be immediately apparent.  Since some legal substances also come in capsule form, it was not immediately apparent that D possession contraband.  The Court implied that if D had acted suspiciously, to include attempts to conceal or move the items in his pocket, that this might change the analysis.


Bandy (COA, August 12, 2008)- D acted suspiciously in high drug, high crime area.  Officer approached D after another officer arrested D’s friend after observing D’s friend throw crack in a bush.  D was unable to give coherent answers to what he was doing in the housing project, which as “No Trespassing” signs posted.  D was also looking around while speaking to the officer, and kept reaching into his pockets, even after being instructed to refrain from doing so.  At that point, the officer told him that he was going to have to pat him down.  The officer patted the leg multiple times, and felt what he immediately recognized to be crack rocks.  Bandy argued, among other things, that the frisk exceed its permissible scope because of the multiple pats.  The COA stated that Dickerson doesn’t proscribe manipulation, since manipulation often will be necessary to discover if the suspect is armed, but just that manipulation that goes beyond what’s necessary to determine whether the item is dangerous (ie, “once he has concluded it is not a weapon.”).


Plain View


Horton v. California, 496 U.S. 128 (1990)-  the essential predicates for application of the plain view doctrine are 1) that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, 2) that the incriminating character of the evidence must be immediately apparent, and 3) that the officer have a lawful right of access to the object itself.


Vaughn (COA, March 31, 2009)- D was suspect in larceny of car parts.  Officer went to D’s house to try to talk to him.  Yard was not fenced, and there were no “No Trespassing” signs.  No one answered the door, so officer walked around back to try to see if anyone was in the backyard.  The officer saw items later identified as the stolen parts in the backyard, in plain view.  D filed a motion to suppress.  The issue was whether the officer was lawfully in D’s backyard.

A resident implicitly consents to having an officer walk onto the cartilage of his property for the purpose of contacting residents.  This implied consent has the effect of deeming this to be reasonable intrusion into a space otherwise protected by the Fourth Amendment.  There is no bright-line rule that precludes a law enforcement officer from deviating from this purpose.  Under the totality of the circumstances, it was reasonable for the officer to go into the backyard.  The Court noted that there were some facts indicating that someone was home (it looked like D could’ve operated a junk yard out of his home, and there appeared to be functional cars in the yard), so this case could be distinguished factually.


Cauls, COA, published October 13, 2009- Officer went to resident to serve arrest warrant on resident.  Officer went inside the house while the subject changed, and saw a scale with white residue in plain view.  Subject refused consent to search, so officer decided to get search warrant.  Before doing so, officer conducted a protective sweep of residence and found D lying on a bed, watching TV.  Officer told D that he was getting a warrant and that D was free to leave.  D said he was only wearing a boxer shorts.  Officer asked D if he wanted pants, and D said yes.  Officer observed men’s pants lying next to the bed, and D confirmed those were his pants.  When officer picked up the pants, he saw a tied off baggie protruding from pocket, but he could not see the contents of the baggie.  Officer removed baggie and discovered crack.

In fact, “plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’”  There are three requirements for a plain view seizure: 1) that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, 2) that the incriminating character of the evidence must be immediately apparent, and 3) that the officer have a lawful right of access to the object itself.

Probable cause cannot be established “‘solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes.’”  Moreover, “[i]t is not sufficient probable cause to seize an item from inside the suspect’s clothing if the officer has no more than an educated ‘hunch’ . . . that the item might be contraband.”  Here, the officer lacked PC, because plastic baggies have legitimate purposes, despite the additional presence of white residue and the scale in the living room, as mere presence in the residence was an insufficient nexus.


Privacy Interest


Gibson (COA, December 18, 2007)- officer shined flashlight into D’s pocket at night, revealing marijuana.  Officer had made no physical contact at that point.  Commonwealth conceded no RAS until flashlight illuminated D’s pocket.  D argued that it was an unreasonable search.  Because the use of a flashlight to illuminate places or things in plain view during daylight hours, no privacy interest is affected, and therefore there was no unconstitutional search.


Protective Sweeps


Robertson (VSC, April 18, 2008)- g/f called police to say that D was threatening suicide, and while on phone with 911 she heard two shots go off.  Police arrived to find g/f outside, while D was cursing at officers and said he had fired his gun and hit it with him.  Police finally tased him.  When he was escorted from the house he told them that no one else was in the house.  No one consented to search of the house, and the police made a warrantless entry, which resulted in recovery of incriminating evidence.  At motion to suppress, there was no evidence that police had suspicions that anyone was left in the house.  A protective sweep is justified when searching officer has a reasonable belief that the area to be swept harbors an individual posing a threat to those at the arrest scene.  These facts were not present in this case.




Lantion (unpublished, December 18, 2007)- good discussion of the issue.  Facts summarized below under “Seizure.”  Court said that it would not have been reasonable for officer to leave D unquestioned under the circumstances.  In a domestic situation, identity is particularly important to determine who the police are dealing with in order to assess the situation.  Even though the victim said D wasn’t involved, in domestic situations officers may reasonably consider whether victims are trying to cover for the abuser.


Archie v. Commonwealth (unpublished, July 31, 2007)- Terry stop did not convert into de facto arrest merely because D told to lie down on ground, cuffed and placed in the back of the cruiser because the police may take reasonable safety precautions during a Terry stop.


Beyene (unpublished, October 2, 2007)- officer’s subjective basis for the stop was irrelevant.


Jenkins (unpublished, October 9, 2007)- officer’s subjective state of mind is irrelevant.  Court erred in applying excessively high standard to justify stop: possibility of innocent explanation does not necessarily forbid an officer to make a Terry stop.  When D held up a plastic bag containing white powder, kissed the bag, pointed at it and said “Woo” and then drove off, officer had RAS to make stop.


Raab (published COA, October 30, 2007)- the possibility of an innocent explanation for behavior does not invalidate a Terry stop.  Officer had RAS to believe that D, who was in closed, unlit restaurant’s parking lot, marked by a “patrons only” sign, was trespassing.  Under the Fourth Amendment, the issue is not whether conduct is guilty or innocent, but the degree of suspicion that attaches to non-criminal conduct.


Jerald Jones (COA, published August 26, 2008)- RPD narcotics investigators located D in lot of hotel associated with drug activity.  Approached car without drawing weapons.  Asked D to put hands on steering wheel, but D thrice put his hands down on the floorboard.  Investigators worried D reaching for gun, and drew their weapons and told him to get out of the car.  D pulled out black bag containing “hard” object and placed it on driver’s seat as he got out of the car.  Bag contained drugs.  Knife located within arm’s reach behind seat.  Court cited numerous cases with similar facts, and held the investigators had RAS to believe D possessed a criminal record.  The law does not expect a police officer must gamble on turning away from a possible danger and chance taking a bullet in the back.

They also lawfully searched the black bag.  The search of the passenger compartment of a vehicle, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific or articulable facts which, taken together with rational inferences from those facts, reasonably warrant belief that the suspect is armed and dangerous  and the suspect may gain immediate control of weapons.  This extends to containers that may hold weapons.  Terry need not be read as restricting the preventative search to the person of the detained suspect.


RAS- High Crime Area


Thomas (unpublished COA, October 16, 2007)- RAS furnished when D walked from a “known drug house” in a high-crime area to a parked car, immediately left the car when he saw the officer and began walking away, moving his hands in his pockets and ignoring officer’s commands to stop.


McCoy (Fourth Circuit, January 25, 2008)- officer working undercover in parking lot, where he’s made previous drug buys and in a type of location that is used for many of the area’s drug deals.  Sees car pull into space, stay there for a couple minutes with neither occupant exiting and then witnesses a tow truck pull up to it.  Officer overheard truck driver ask where D wanted to meet.  This is the same pattern he’s seen in other cases.  They then both drove to a different grocery store and parked a few spots away.  D got into the tow truck, then exited while the truck started to drive away.  Looking at the totality of the circumstances, the Court held that D had RAS to order D to put his hands on the trunk and then frisk him because they eliminated a substantial portion of innocent travelers.


Granger (COA, unpublished, February 12, 2008)- officers saw guy on a bike next to D, who was in passenger seat in the vehicle.  Officers observed what they described as a hand to hand transaction in a high crime area. They recognized the guy on the bike as a known narcotics user.  When they approached, with weapons drawn, the guy on the bike looked nervous, and D lunged forward with his hands toward something in front of him or on the floor.  These circumstances furnished RAS for the protective sweep of the vehicle that resulted in the recovery of heroin.


Middlebrooks (COA, published August 5, 2008)- D acting suspiciously in high crime area.  Facts did not give rise to RAS.  The presence of a person, in the early morning, at a location with a reputation for drugs, cannot serve to impute criminal behavior to that person by virtue of his presence in the area.


Randolph, (VSC, February 27, 2009)- D’s car parked parallel to the rear of an open gas station with its lights off at nighttime.  The rear of the store has an entry open to the public, but the officer believed it was unusual for customers to use that rear entry at night.  Officer testified that there had been numerous burglaries of closed businesses and robberies in the area.  Officer observed D act as though he was rummaging through something in the car, and D continually “looked up.”  Officer drove around D’s car, and didn’t see anything unusual.  When he drove by D’s car, D drove off and officer stopped him.  Officer asked D to step out of the car, and he located marijuana in the car.

A person’s presence in a high crime area is a relevant factor for RAS, but by itself, it is insufficient to furnish RAS.  The officer lacked RAS to believe D was engaged in criminal activity, or was about to be engaged in criminal activity.


Roberts, COA, published November 10, 2009- officers patrolling high crime, high drug area and approached a house reported to be associated in drug dealing.  As officers approached D, and others sitting on steps to the house, D became upset, began looking around and balled up his fist.  Officer never asked him what was in his fist.  D refused to consent to a search, so officer commanded him to get into the “officer safety position” and put his hands behind his head.  When D wouldn’t open his fist, officer grabbed it and discovered crack.  Officer testified that he considered D’s behavior upon their approach to possess “pre-assault indicators”.  Court emphasized that officer’s opinion was based on training obtained after this incident.  “An officer’s perception of a suspect’s nervousness [and verbal agitation], without additional articulable facts reasonably suggesting the suspect is armed and presently dangerous, cannot justify a pat-down search.”  Court acknowledged case law tying drugs to violence, but there was no evidence of a particularized suspicion that D was engaged in drug distribution.  COA reversed trial court.


D found outside convenience store in high crime area.  When officer approached, D behaved in manner officer testified was consistent with his observations of trespassers.  D arrested, gave wrong name, which came back wanted, then corrected his name, which also came back with an active warrant. Officer located gun in a search incident to arrest.   Overview of principles underlying Terry stops and people’s rights in high crime areas.


RAS- Pat Down


Marzette (unpublished, November 27, 2007)- RPD saw D on public house property, and determined that D didn’t live there.  Officer was going to ban D or write a trespassing summons when D started acting nervously.  D refused consent for a pat-down.  Officer told D that he was going to pat him down, and when D turned his torso, officer grabbed his arm and patted-him down.  The officer hadn’t observed any bulges, or anything else indicative of a weapon.  After the pat-down, which turned up a firearm, officer found that D had outstanding warrant.  Pat-down was unlawful because there were no specific facts giving rise to a RAS that D was armed and dangerous.  There was no evidence that D acted aggressively, that it was in a high-crime area, or that D engaged in drug activity.


Asble (COA, published, November 27, 2007)- Officer found car idling on side of highway.  Approached vehicle and saw D reaching down to floorboard in front of his seat.  Officer asked what was wrong and D replied that his wife was sick.  Officer “removed” D from the car.  Court said that this was where consensual encounter ended, and analyzed whether there was RAS to perform pat-down, which extends to vehicles under recent occupancy rule.  There was nothing to say that there was something illegal with the time and manner of the parked vehicle and the Court explicitly stated that there was no evidence that it was a high-crime area.  The only issue was whether the movement provided RAS, and the Court held that it did not, as the D’s explanation, that he was putting on the emergency brake, was consistent with the facts.


Thompson– (COA, published, February 5, 2008)- officer saw D in high-crime area.  Officer had prior experience with D and knew D was a drug user and often carried needles.  He relayed this information to other officers.  Another officer, aware of this information, encountered D with two other men congregated in a way that was indicative of cocaine use.  D acted elusively.  Officer detained D, put him in curffs, and frisked him, feeling a knife.  Knife was seized, as was a soda can manipulated in a way commonly used to smoke crack.  Officer had RAS and cuffing D did not convert it into an arrest.  Brief, complete deprivations of a suspect’s liberty do not convert a Terry stop into a formal arrest as long as the restraint is reasonable.  Officers may handcuff suspects when they reasonably believe they’re confronted with a dangerous situation, and they may infer that drug users are potentially dangerous.  The pat down was reasonable for the same reasons. CONVICTION REVESED ON OTHER GROUNDS BY VSC, WHICH DID NOT ADDRESS THE FOURTH AMENDMENT ARGUMENTS.


McCain (VSC, April 18, 2008)- D passenger in a car that was stopped in high crime area.  D seen leaving a known drug house.  Driver of vehicle’s license was suspended, as was D’s.  Officer had to tow car and asked them to exit.  D had complied with all of their requests.  However, officers thought D was acting edgy and nervously, and asked to search him.  D refused, so officers ordered him to place hands on vehicle and they conducted a pat down, D pulled hand off car, and was restrained.  During pat-down, officer asked D whether he had  any weapons on him, and D told him he had a gun- searched of his person revealed gun and drugs.

Trial court’s denial of suppression motion reversed.  Good defense dicta- D’s mere presence at the drug house did not furnish RAS of criminal activity.  A person’s rights are not diminished because he lives or travels in a high crime area.

D’s detention following permissible traffic stop was constitutional.  Issue was whether officer could seize and pat-down D after having him exit the vehicle.  Although an officer may have RAS for a stop, he may only conduct a pat-down if he has a reasonable, individualized suspicion the person is armed and dangerous.  Circumstances to examine include: time and location of the stop, specific conduct, character of offense suspected and officer’s training and experience.  Nervousness, standing alone, is insufficient, but is a pertinent circumstance.


Bandy (COA, August 12, 2008)- D acted suspiciously in high drug, high crime area.  Officer approached D after another officer arrested D’s friend after observing D’s friend throw crack in a bush.  D was unable to give coherent answers to what he was doing in the housing project, which as “No Trespassing” signs posted.  D was also looking around while speaking to the officer, and kept reaching into his pockets, even after being instructed to refrain from doing so.  At that point, the officer told him that he was going to have to pat him down.  During pat down, officer felt what he immediately recognized, without having to manipulate it, to be crack.  Officer, if nothing else, had RAS to believe D was committing trespassing, and he had reason to believe D was armed and dangerous due to his location, his friend’s possession of drugs, and D’s actions.  The link between drugs and guns “is a tight one.”


Thompson, COA, April 28, 2009- D loitering in front of store in area known as open air drug market.  Evidence suggested D had been in front of the store for about 20 minutes.  When officer approached, two men standing with D walked away and D turned to walk into the store, although he turned around at the officer’s request.  D handed over his ID with a trembling hand, and the officer said that D acted unusually nervous when officer asked if he had any weapons.  When D didn’t respond after being asked for the third time, officer put D up against a wall, and D grabbed for his waistband after officer told him he was going to pat him down. Officer felt what he recognized as a gun in D’s pants, and arrested D.  Search incident to arrest, officer located a gun and drugs.

The Court limited its analysis to whether D was armed and dangerous.  “An officer’s perception of a suspect’s nervousness, without additional articulable facts reasonably suggesting the suspect is armed and presently dangerous, cannot justify a pat-down search.”  “Nervousness . . . standing alone, is insufficient to justify a frisk for weapons, but ‘nervous, evasive behavior is a pertinent factor’ for consideration in assessing the totality of the circumstances …We are mindful that this Court has previously acknowledged that suspicion of narcotics distribution gives rise to an inference of dangerousness . . . We are not prepared to conclude that one who loiters in an “open market for drug sales” is automatically subject to a pat down.  “he common thread in those cases involving high crime areas and nervous behavior is the specific act of a furtive gesture to suggest that the suspect is armed.”


Smith, COA, published October 13, 2009- D convicted of earlier f/a by felon charge and PWID.  Arresting officer entered his information in police database listing D as armed and dangerous.  11 months later, D a passenger in car stopped for equipment violation.  Officer took D’s ID, saw his information in the database and conducted a pat down without D’s consent.  Located a gun.

While police didn’t need additional justification to detain D for a stop and frisk beyond the RAS to stop the vehicle in which he was riding, they needed justification to believe that he was armed and dangerous.  The USC said in Terry that the authority to frisk for weapons must be narrowly drawn, and officer must suspect that the person is armed and presently dangerous to the officer or others.  In sum, “‘[e]ven in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized[, articulated] suspicion [that the individual may be presently armed and dangerous] before a frisk for weapons can be conducted.’”

The officer’s knowledge could rise no higher than the knowledge of the officer that entered his information into the database- the evidence did not show whether the officer knew D had been convicted of the earlier offenses.  In the absence of some contemporaneous indication that the individual might be carrying a weapon, these facts do not provide reasonable suspicion to believe he may be presently armed and dangerous. Absent additional circumstances, “an officer’s knowledge of a suspect’s criminal history alone is not sufficient to justify the initial stop of a suspect” or, absent special circumstances such as a lengthy or closely contemporaneous criminal history, “[sufficient] to justify a frisk of a suspect once stopped . . . .”  Prior involvement with guns and drugs is an appropriate factor for consideration in the totality-of-the-circumstances analysis but is insufficient, standing alone, to provide reasonable suspicion for a weapons frisk.

REVERSED BY VSC ON APRIL 14, 2011.  “We find that a reasonably prudent police officer, in light of his experience, and with due regard to his own safety when executing a valid traffic stop, has reasonable suspicion that an individual may be armed and dangerous based upon the officer’s knowledge of the individual’s prior felony conviction, followed by repeated charges over the previous eleven months involving firearms and a drug offense closely associated with firearms.” However, “[t]he remoteness of arrests and convictions or an absence of weapons-related or dangerous offenses in an individual’s criminal history may be such that the individual’s criminal history is not sufficient for an officer to reasonably be concerned about his safety or the safety of others in order to establish reasonable suspicion for a frisk.”


Baker, COA, published October 19, 2010- D riding bike, swaying, in high crime/drug area.  D refused permission to search, but officer conducted pat down.  During pat down, saw suspected crack pipe sticking out of D’s pocket.  Because officer did not have a particularized RAS that D was armed and dangerous (and the Court specifically pointed out that courts have not recognized a nexus between mere DIP and possession of weapons), the pat down was unlawful.  In addition, because the nature of the pipe was not readily apparent to officer at time he removed it from D’s pocket, that search was unlawful.


RAS- Traffic Stop


Otey, COA, published December 26, 2012.  Good discussion of defective equipment stops.  Footnote provides authority for proposition that defective optional equipment would not justify a stop.


Mason, COA, published August 5, 2014.  D a passenger in car stopped for dangling object (parking pass).  Officer agreed that if the driver looked straight ahead, nothing about the pass would obstruct his view.  In addition, nothing about the driver’s driving indicated view was obstructed.

  • 46.2-1054 only proscribes dangling objects that obstruct the driver’s view. Permitting all stops simply for the fact of the dangling object would impermissibly create a per se rule.

OVERTURNED EN BANC ON FEBRUARY 3, 2015.  Court cited rule that officer is not required to articulate from the stand the precise justification for the stop, since RAS is an objective standard.  Because of the broad definition of “highway”, statute prohibits an object from obstructive a clear view of more than just the roadway.  But note: “Code § 46.2-1054, after all, does not uniformly forbid drivers from dangling objects from their rearview mirrors — only those positioned “in such a manner as to obstruct the driver’s clear view of the highway.”


Revocation Hearings


Logan (published, COA, October 23, 2007)- exclusionary rule doesn’t apply in revocation proceedings.  So, even though drugs found after unlawful search were suppressed in criminal case, that did not bar their admission at revocation proceeding related to older conviction.  REVERSED AND REMANDED BY VSC.


Cox, published, COA, December 1, 2015- although the full Sixth Amendment right to confrontation does not apply outside of a criminal trial, “a more limited right of confrontation [is] included in the Due Process Clause of the Fourteenth Amendment, applicable to parole and probation revocation proceedings.” Henderson, 285 Va. at 325-26, 736 S.E.2d at 905. In a probation revocation hearing, due process requires at a minimum: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.


Search Warrants


Patton v. Commonwealth (unpublished, July 31, 2007)- Warrant for apartment leading to seizure of documents based on probable cause when package containing cocaine from source country addressed to apartment located in high crime area.

Officers don’t have to interpret warrant narrowly.


Sowers, 49 Va. App. 588 (2007)- date of incident on warrant may be important because PC may be diminished with time.  See Coyningham, unpublished COA opinion from December 2008, for good discussion of factors to consider on this issue.


Jeffers, COA, published June 18, 2013.  Police executed search warrant authorizing search of residence on property that contained a barn.  When they arrived, they learned that D lived in the barn, not the trailer. Officers do not have to interpret scope of warrant narrowly or broadly, just reasonably.  Reasonableness does not mean perfection. To be excusable, of course, mistakes made by officers in the execution of warrants “must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.”


Search Warrants- Franks


Davis, COA, published November 24, 2015. The Fourth Amendment entitles a defendant to a hearing designed to challenge a facially valid search warrant only under limited circumstances. Franks, 438 U.S. at 171-72. If a defendant wishes to challenge a search warrant, the defendant first must make a motion requesting a new evidentiary Franks hearing, in which the defendant must make a “substantial preliminary showing” that a false statement was knowingly and intentionally included in the warrant affidavit or included with reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Id. at 171. In order to make such a showing, first, a defendant should point out the deficiency with specificity, include a statement of supporting reasons, and prepare affidavits or sworn (or otherwise reliable) statements of witnesses. Id. If there is a “substantial preliminary showing,” the circuit court must then determine whether the allegedly false statement is necessary to the finding of probable cause. If both requirements are met, a court must hold a Franks hearing.



Search incident to Arrest


Moore (USSC, April 23, 2008)- D arrested in violation of state arrest statute.  Court held that violation of state statute did not require exclusion of the fruits of that arrest under the Fourth Amendment.  States are free to provide greater protections than the federal constitution, but that does not change Fourth Amendment analysis, which does not vary from state to state and from time to time.  Warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Fourth Amendment.  Officers may perform searches incident to constitutionally permissible arrests.  Searches incident to arrest are reasonable because taking a suspect into custody prolongs the officer’s exposure to danger.  An officer giving a citation does not expose himself to the same risks, so Knowles doesn’t control.


Rawlings v. Kentucky, 448 U.S. 98 (1980)- When the formal arrest follows quickly on the heels of the challenged search, it is not particularly important that the search preceded the arrest rather than vice versa.


Italiano, 214 Va. 334 (1973)- good discussion of searches incident to arrest that precede the arrest.


Riley v. California, 134 S. Ct. 2473 (2014).  Generally, police may not search cell phones warrantless during searches incident to arrest.


Search incident to Arrest- Vehicles


Arizona v. Gant, U.S. Supreme Court, April 21, 2009- D arrested for driving with a suspended license.  He was removed from vehicle, handcuffed and locked in the back of a patrol car.  Searching his vehicle incident to arrest, police located cocaine in a jacket pocket inside the vehicle.  The Supreme Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”


Armstead, COA, published July 13, 2010- D arrested for providing false identity info to police.  Evidence discovered during search incident.  COA held that it was reasonable to believe that D’s true identifying docs would be located inside the vehicle, so the search was lawful.




Lantion (unpublished, December 18, 2007)- officer responded for a domestic.  Woman invited him inside the residence, where she told him that her boyfriend had assaulted her after she refused to have sex with his friend in exchange for cocaine.  She eventually told the officer there was someone in a bedroom.  Officer entered bedroom and found D asleep on the bed.  Officer awoke D and began asking him questions.  After D was unresponsive, officer conducted a pat-down.  Court said that the mere questioning was insufficient to constitute a seizure, and that even though it may have been intimidating from D’s perspective, the analysis is from the perspective for an innocent person.


Michigan v. Chesternut, 486 U.S. 567 (1988)- acknowledges the objective standard for analyzing whether a seizure has taken place. In footnote 7, the Court stated that the subjective intent of the officers is relevant to an assessement of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted.


Seizure- submission to authority


Thomas (unpublished COA, October 16, 2007)- no seizure occurred when officer commanded D to stop and D continued to walk away, nor when officer brandished his taser, because D did not submit to officer’s show of authority.  Seizure occurred only when D laid on the ground.


Jerald Jones (COA, published August 26, 2008)- RPD narcotics investigators located D in lot of hotel associated with drug activity.  Approached car without drawing weapons.  Asked D to put hands on steering wheel, but D thrice put his hands down on the floorboard.  Investigators worried D reaching for gun, and drew their weapons and told him to get out of the car.  D pulled out black bag containing “hard” object and placed it on driver’s seat as he got out of the car.  Bag contained drugs.  Knife located within arm’s reach behind seat.  Officers may approach citizens in public places, identify themselves as police officers and ask questions without violating 4th Amendment.  A consensual encounter becomes a seizure only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.  However, the individual must submit to the officer’s force or authority.  Because D didn’t comply with request to put hands on wheel, even if that was sufficient force to create a seizure, D wasn’t seized because he didn’t submit.


Seizure- pedestrian approach


Bandy (COA, August 12, 2008)- D acted suspiciously in high drug, high crime area.  Officer approached D after another officer arrested D’s friend after observing D’s friend throw crack in a bush.  D was unable to give coherent answers to what he was doing in the housing project, which as “No Trespassing” signs posted.  D was also looking around while speaking to the officer, and kept reaching into his pockets, even after being instructed to refrain from doing so.  At that point, the officer told him that he was going to have to pat him down.  The COA held that the seizure occurred at that point.


Seizures- Drug Dogs


Rodriguez v. U.S., USSC, published April 21, 2015.  Following completion of a traffic stop, officer had a dog sniff the car.   Dog found drugs about 7 minutes after completion of the stop.  Court decided “whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.”

Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.  The “critical question” is not whether the sniff occurs before or after issuing the ticket, but whether the sniff prolongs the stop.


Farrior v. United States (4th Cir., August 5, 2008)- D stopped for inoperable light.  Officer at first gave oral warning and said he was free to go.  Before D left, D granted consent to search vehicle, and the search didn’t result in anything.  However, officer’s supervisor arrived on scene and said they had to issue a written warning.  This was done, and as the officer explained the warning to D, drug dog arrived and alerted on vehicle.  Trunk and D were searched, resulting in discovery of cocaine.  A dog sniff is not a search, but in order to perform a sniff, there must be a seizure of the vehicle and therefore, the person, requiring consent to be detained or RAS.  Here, the additional time taken to take his license and write the ticket amounted to a de minimis intrusion on D’s liberty and thus it was not “unreasonable.”


Branch (4th Cir., August 20, 2008)- valid traffic stop.  Officer approached car, found Branch to be the driver, and there was a front seat passenger.  Officer noticed multiple air fresheners, as well as the odor of laundry detergent.  When Branch handed officer his documents, his hand was shaking.  Dispatch had told officer that the car had been involved in a traffic incident in high drug area a couple weeks prior, he had heard Branch’s name in connection with drugs, and his address on his license listed him as living in the same high drug area where the traffic incident had occurred.  Officer requested backup, and also asked about a drug dog.  While he was waiting, someone told officer over radio that Branch was well known as a drug dealer.  Officer ended up having to request dog from another agency, who said they’d send a dog from BWI, which was 10-15 minutes from location of stop.  While filling out citation, officer learned that title to vehicle was not on file, nor was the registration.  Officer also learned Branch had a valid license, and no outstanding warrants.  Branch gave an explanation as to his possession of vehicle, which officer was able to contradict.  Dog arrived on scene, and began to sniff the car simultaneously with officer’s issuance of the completed summons 27 minutes after the stop.  The dog alerted on the front passenger side.  Branch and passenger exited car, and the dog searched inside, alerting near glove compartment.  Police located a scale, baggies, some crack and a gun in the car.

There is no time limit for a traffic stop- just that it cannot last longer than necessary.  Thus, once the driver has demonstrated that he is entitled to operate the vehicle, and the officer has issued the ticket, etc., the driver must be allowed to depart.  However, if the driver obstructs the officer in some way, such as providing inaccurate information, then a longer stop would not be unreasonable.

In order to prolong the stop, the driver must either consent, or the officer must have RAS that criminal activity is afoot.

The Court noted that Branch’s inaccurate information prolonged the stop, but said it did not have to hold that he was responsible for the entire delay of the stop because the officer had RAS justifying a prolonged detention.


Jones, (VSC, published January 16, 2009)- D argued that the dog’s alert on his vehicle didn’t furnish police with probable cause to search the car.  Court said that analyzing probable cause in the dog context is similar to the informant context: courts should examine the source’s reliability and the officer’s opportunity to observe the source.


Florida v. Harris, USSC, published February 19, 2013.  Dogs’ reliability is measured in light of the totality of the circumstances.


Standing- Passengers


Atkins, COA, published August 31, 2010- discusses standing and cites cases permitting passenger to challenge stop and a case where passenger found to have standing to challenge search of a bag in the vehicle.


Suppressing Conduct


Gray (published, COA, October 23, 2007)- the exclusionary rule does not apply to criminal conduct that took place after unlawful police activity.  Although D was initially unlawfully detained, his flight from the police after receiving signals to stop constituted separate criminal activity subsequent to the unlawful detention and was not suppressed.


Terry Stops- Generally


Brendlin v. California, 551 U.S. 249 (2007)- during a traffic stop, the officer effectively seizes everyone in the vehicle.  Therefore, a passenger has standing to challenge the constitutionality of the stop.  During a traffic stop, no reasonable person, including a passenger, would feel free to leave.


Arizona v. Johnson (USC, published January 6, 2009)- In a traffic stop setting, the first step (a lawful stop) is met whenever it is lawful for a police officer to detain an automobile and its occupants pending inquiry into a vehicular violation.  The police need not have, in addition to the reason for the stop, cause to believe any occupant committed or was about to commit a crime.  However, just as in a pedestrian approach, the police must have RAS to believe the subject is armed and dangerous in order to justify a pat down.


Pennsylvania v. Mimms, 434 U.S. 106- officers may lawfully remove the driver of a lawfully stopped vehicle.


Maryland v. Wilson, 519 U.S. 408 (1997)- extends Mimms to include passengers of lawfully stopped vehicles.


Knock and Announce


Patton v. Commonwealth (unpublished, July 31, 2007)- suppression is not the remedy for a violation of knock and announce.


Third Party Consent


Glenn (VSC, January 11, 2008)- D was arrested at grandparents’ house.  After arrest, D was present when grandfather consented to search of house.  D lived there, but didn’t pay rent, and did not object to consent.  Search of D’s bedroom revealed nothing, but D commented that he slept in another room, too. When that room was searched, officers found a closed book bag that was found to contain evidence of a robbery and D’s ID.  D challenged only the search of the closed container.  When a lawful search of a fixed premises occurs, it extends to the entire area and is not limited by the possibility that there might be separate acts of entry required to complete the search.  Grandfather had apparent authority to consent to that search because the bag bore no indicia of reliability, was in an area open to all occupants, it had not characteristics limiting its use by age or gender and had no evidence of limitations of use.  The police do not have the burden of questioning the consenter as to every item they might find during their search- the latent ambiguity of ownership does not render the search unreasonable.


McLaughlin, COA, published November 17, 2015. Consent may be obtained either from the individual whose property is being searched or from a third party with common authority over the premises. Jones v. Commonwealth, 16 Va. App. 725, 727, 432 S.E.2d 517, 518-19 (1990). The standard for determining whether a third party has actual authority to consent is the following: The authority which justifies the third-party consent . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. United States v. Matlock, 415 U.S. 164, 171 n.7 (1974).  “[E]ven if that party does not have actual authority to consent, apparent authority may be sufficient [to justify a search without a warrant] if the facts surrounding the situation would have led a reasonable officer to conclude that the person providing consent had the requisite authority.”  However, as the United States Supreme Court has noted, “The authority which justifies the third-party consent does not rest upon the law of property, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes . . . .”

Probation officer learned that D lived in the trailer with his sister; an adult woman answered the door; allowed the officer to come in; and the PO noticed the woman had guests.  Court held that the woman had apparently authority to consent to entry of the home.  Furthermore, based on the trial court’s factual finding that the woman had authority to enter D’s bedroom, PO was lawfully in a position to view the contraband in his room.


White, COA, published May 10, 2016.  A consent search by law enforcement officers may be “reasonable when conducted pursuant to voluntary consent offered not by the defendant . . . but by a third party who shares access to the . . . object being searched.” Glenn, 275 Va. at 130, 654 S.E.2d at 913. The person authorizing the search can be one with either actual or apparent authority. Id. at 132, 654 S.E.2d at 914.

Actual authority exists where the third party has “(1) mutual use of the property by virtue of joint access[] or (2) control for most purposes.” Id. (quoting United States v. Andrus, 483 F.3d 711, 716 (10th Cir. 2007)). However, the mere fact that a container owned by one person is located on residential premises belonging to or under the control of another does not mean that the person in charge of the premises has actual authority to consent to a search of the container.

Apparent authority exists “when an officer reasonably, even if erroneously, believes the third party possesses – 18 – authority to consent” to the search.

Ordinarily, where a third party with actual or apparent authority provides a “general and unqualified consent for an officer to search a particular area, the officer does not need to return to ask for fresh consent to search a closed container located within that area.”  However, if the consenter volunteers ownership information about a particular container or the police “ma[k]e [inquiry],” they “must be reasonable in drawing conclusions from the responses received.”

Here, it was unreasonable for police to believe the girlfriend had authority to consent to search when she told them it was D’s bag.

Richard Collins is an attorney at Collins & Hyman, PLC, with offices in Williamsburg and Newport News.