Virginia Appellate Court Finds Officers’ Protective Sweep Following Car Stop Violated Defendant’s Rights | Robinson Law, PLLC

 Posted on August 18, 2020 in Criminal Defense

Earlier this year, a state appellate court issued a written opinion in a Virginia gun possession case, requiring the court to review the lower court’s denial of the defendant’s motion to suppress a gun that was found under the seat of the car he was driving. Ultimately, the court concluded that the facts surrounding the car stop, as well as the information the officers had at the time, failed to justify the officers’ protective sweep of the vehicle.

The Facts of the Case

According to the court’s opinion, police officers pulled over the defendant due to a burnt-out fog light. When the officers approached, they asked if there were any weapons in the car. The defendant told them that the car was his girlfriend’s, but that there were not weapons he knew of. When asked, the defendant declined to give consent to search the vehicle, explaining that it was not his car. However, the defendant offered to call his girlfriend to ask her if she was willing to give consent. While one officer was interacting with the defendant, the other looked up a Department of Corrections alert indicating the defendant may be a member of the Crips gang. However, the officer did not convey this information to his partner at the time.

After the defendant refused to consent to a search, one of the officers told him to get out of the car so that he could perform a protective sweep of the vehicle. The defendant complied. The protective sweep revealed a gun under the driver’s seat.

The defendant filed a motion to suppress the gun, arguing that the officers lacked reasonable suspicion to believe that he was armed and dangerous at the time they conducted the protective sweep. The trial court rejected the defendant’s motion and the defendant appealed.

The Case Is Reversed on Appeal

On appeal, the appellate court reversed the lower court, finding that the officers lacked justification to remove the defendant and perform a protective sweep of the vehicle. Citing a U.S. Supreme Court case, the court explained "a protective search for weapons in the absence of probable cause to arrest [is permissible when a police officer] possesses an articulable suspicion that an individual is armed and dangerous."

Here, the court agreed with the defendant that no facts gave rise to an inference that the defendant was armed and dangerous. The court pointed to the fact that the defendant was not making furtive movements as the officers approached, and that he complied with all their requests. The court also noted that the fact someone exercised their Fourth Amendment rights by refusing to consent to a search cannot be used to question to prove a person is being evasive.

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