Va. Court Rejects 2 Drug Searches
Justices Conclude Police Acted on Vague Suspicions

By Tom Jackman, The Washington Post – April 19, 2008

The Virginia Supreme Court reined in police searches yesterday, overturning convictions in two 2005 drug cases in which the court said police had conducted searches based on vague suspicions.

In one case, a Henrico County officer followed a woman who appeared intoxicated to her car, saw what appeared to be marijuana joints inside and arrested her. The officer then found cocaine and heroin in the car. But the Supreme Court ruled that the officer had no grounds for the marijuana arrest.

The court also deemed illegal the search of a Danville man who was seen getting into a car after leaving a suspected drug house. An officer pulled the car over for defective equipment and learned that neither the woman who was driving nor the man had a license. The officer ordered both out of the car, frisked them and found a gun and cocaine on the man.

L. Steven Emmert, a Virginia Beach lawyer who writes about the state’s courts online, said he wasn’t surprised by the rulings. “While Virginia is still one of the law-and-order states,” Emmert said, “the Supreme Court is very respective of Bill of Rights types of cases.”

Corinne Magee, a McLean defense lawyer, said the rulings weren’t unusual because the Supreme Court has been regularly reversing the state Court of Appeals. “What we’re seeing is the conservatism that has developed in the Court of Appeals,” Magee said, “and the Supremes reacting to that.”

The first reversal involved Frances G. Buhrman, who was “having some difficulty maintaining her balance while walking” at a convenience store, according to Henrico Officer C.M. Nelson. She appeared to “fall asleep while operating a frozen drink machine,” the officer said.

Nelson testified that she was concerned that Buhrman might be drunk and then drive. She followed Buhrman to her car and asked for identification, and Buhrman promptly complied. In doing so, she revealed “hand-rolled cigarettes in the interior door handle.” The officer said that she smelled a “faint odor,” that the cigarettes had a “coloration” and that she suspected marijuana.

A trial court rejected Buhrman’s attorney’s attempt to suppress the arrest, as did the appeals court, and she was sentenced to six months in jail.

Supreme Court Justice Lawrence L. Koontz Jr. wrote that “evidence of intoxication and vaguely ‘suspicious’ actions, without more, does not suffice to indicate that hand-rolled cigarette materials are being used for the illegitimate purpose of smoking marijuana, as opposed to the legitimate purpose of smoking tobacco.” He also said the officer failed to specify what kind of “faint odor” she smelled, making that “insufficient to create probable cause to arrest an individual for possession of marijuana in this case.”

In the second case, Danville Officer R.V. Worsham watched a car pull up outside a house where an informant had bought cocaine months earlier. The occupants went inside and were back within a minute. Worsham pulled the car over, found that neither occupant had a driver’s license and frisked them both, finding drugs and a gun on Tyrone Junior McCain.

Worsham also testified that he conducts pat-down searches of everyone in that “high crime” neighborhood, “for my safety.”

Justice S. Bernard Goodwyn wrote, “A person’s Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a ‘high crime’ area.” He noted that Supreme Court precedent requires specific suspicion of an individual before a search can be conducted.

“That is a fantastic decision,” Christopher B. Amolsch, an Alexandria defense lawyer, said of the Danville case. “If the Supreme Court didn’t reverse that,” particularly after the officer said he frisked everyone, Amolsch said, “they’d be giving police a license to shake down everybody in a high-crime neighborhood.”