Traffic Safety Legal Corner - April 2025

Provided by Judge Michael Cassidy (Ret.), Virginia Judicial Outreach Liaison
mcassidy@vacourts.gov

Judge Cassidy publishes the Roundabout Traffic Newsletter for judges in Virginia General District Courts. In it, he provides a summary of recent highway safety related court decisions.  Judge Cassidy urges everyone to go to the full opinion before relying on the summaries. A hyperlink is provided for each case.

Recent Published VA Supreme Court Highway Safety Related Decisions: 

230511  — Commonwealth v. Garrick (05/09/2024)

Supreme Court reverses Court of Appeals and reinstates conviction for possession of heroin and firearm by felon by an impaired defendant based on proximity of a plastic bag with the drug and a loaded .38 caliber handgun in glove box mixed in with maintenance receipts with the name of the defendant. The evidence supported the rational conclusion that Garrick admitted he owned the vehicle and had been in the vehicle long enough to (1) drive the vehicle to the convenience store, (2) fall asleep, (3) have someone notice that he had been sleeping in the vehicle for a period long enough to warrant that person notifying the police, and (4) have the police respond and eventually rouse Garrick.

Although it is true that any of these facts are insufficient in and of themselves to demonstrate beyond a reasonable doubt that Garrick constructively possessed the heroin and the firearm, collectively they “combined” to allow “a reasonable mind [to be led] irresistibly to a conclusion.”  

Recent Published VA Court of Appeals Highway Safety Related Decisions:  

0795233 —  Shanta Orlando Hubbard, a/k/a Shawn Hubbard v. Commonwealth of Virginia (03/12/2024)

Traffic stop leading to possession of cocaine with intent conviction reversed because Commonwealth did not establish on the record a justification for ‘warrantless intrusive bodily search’ of suspect’s buttock. The search follows a pre-March 2021 observation of odor of marijuana and discovery of green plant material on the floorboards as well as bags of white and brown powders that were “knotted up” in a manner consistent with the appearance and packaging of illegal drugs.

Search of ‘defendant’s bottom’ could not be justified by speculation that it was fentanyl and would thereby constitute a safety threat. The court rejected the waiver by the defendant of his right against warrantless searches of his person in a prior plea agreement as an authorization for this intrusive search. The court previously held that a general consent to a warrantless search does not include an intrusive search of private areas.

Relying on Schmerber v. California, the court held that whether a search is a strip search, a visual cavity search, or a manual cavity search, all such searches are peculiarly intrusive and law enforcement must have a “clear indication” that evidence is concealed, that there are exigent circumstances, and the means and procedures used to obtain the item must be reasonable under the Fourth Amendment. Commonwealth v. Gilmore, 27 Va. App. 320, 330-31 (1998) (quoting Schmerber, 384 U.S. at 768).

 230599 —  Durham v. Commonwealth (08/01/2024)

Challenge to the smell of alcohol being sufficient probable cause for an officer to search a vehicle to determine whether there is a partially consumed container of alcohol to give rise to a presumption of consumption while driving under § 18.2-323.1. The search uncovered a concealed weapon.

Though Code § 18.2-323.1(B)’s prongs may be good indicators that a driver has been consuming alcohol on a public highway, it is unnecessary to meet all three to justify a vehicle search. Instead, probable cause to search a car for evidence of drinking while driving remains a totality of the circumstances analysis that may be informed by an officer’s training, experience, and everyday common sense. Once inside the passenger compartment, the officer could search every part of the vehicle that might conceal the objects of his search.

On the second issue of the sufficiency of evidence of possession of the revolver, such a finding was a conclusion a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt based on the defendant’s twisting towards the center console, keeping his hands out of view, while all other occupants sat still and faced forward and while keeping his eyes on the officer through the side view mirror.

1427232 —  Ryan Douglas Roberts v. Commonwealth of Virginia (09/17/2024)

Challenging his firearm and drug convictions, Ryan Douglas Roberts argues that the trial court should have suppressed the evidence that the police officer discovered from his warrantless entry into the car in which Roberts was asleep in the passenger seat. When the officer approached the passenger window, he saw that Roberts was grasping a pistol that was tucked into his waistband. The officer announced that he was opening the door to secure the weapon. But as the officer did so, he saw a bag of drugs in plain view sticking out of Roberts’s pants pocket. Court of Appeals held that the officer did not violate the Fourth Amendment because his warrantless entry into the car was reasonable under the emergency-aid exception to the warrant requirement.

The officer could reasonably believe that Roberts’s holding a gun while he was disoriented and apparently intoxicated endangered bystanders, the officer, and defendant himself. The modern emergency-aid exception traces its origins to Mincey v. Arizona (437 U.S. 385 at 392), which held that “the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.”

The Court of Appeals was not willing to apply community-caretaker doctrine, which traces its origins to Cady v. Dombrowski, 413 U.S. 433 (1973) because of a shifting history of its application. Applying the emergency-aid exception avoids having to examine the officer’s subjective purpose, having to decide whether the officer’s concern about public safety was intermixed with law-enforcement concerns, and it not matter whether the officer’s proactive patrol was part of standard police procedure. All of those being part of the history of Cady.