The Most Important Law in Virginia History?

A bill banning police from initiating searches based on marijuana odor and making traffic stops for many minor infractions is heading to the governor’s desk.

A bill I wrote about last week, and a centerpiece of the Virginia police reform movement, is about to become law. And it will drastically change not only the practice of criminal law in Virginia, but the way all people interact with police.

I’ll call it the “No Pretext Law” which forbids police traffic stops based solely on defective lights, hanging rearview objects, and expired inspection. Not only that, any evidence discovered as the result of such a stop cannot be used against the driver or passenger.

In my career I’ve represented dozens of people stopped for stupid technical equipment violations only to have their cars torn apart by police searching for marijuana scraps in the floor carpet. Well that’s all over. Police now need an actual, primary offense violation (speeding, weaving, blowing a stop sign, etc.) to stop a car.

Supporters of the law argue that police use minor infractions as a way to stop and search someone they have a hunch is committing other crimes, enabling racial profiling. Since a mere hunch is not good enough to stop someone under the Fourth Amendment, the hundreds of vehicle code laws on the books have allowed police to pull over virtually anyone they want. The police don’t care about the infraction; they want to look in the car and ask probing questions. Perhaps you know someone charged with a crime after being stopped for a traffic violation who never got any ticket for the actual reason for the stop. 

The new law also prevents police from searching vehicles when they smell marijuana. This is called “plain smell” and for years a search could be justified merely by an officer claiming he smelled marijuana. I’ve had several cases where this was the justification for a search that revealed NO actual marijuana.

There is no doubt the new law will hinder crime prevention, especially drug and firearm crimes. Some pretext searches uncover illegal firearms or significant drug quantities. But the benefits of limiting police-citizen encounters in an age of aggressive policing far outweigh the costs of missing a chance to search here and there. Most of the time, pretext searches reveal nothing of any consequence and only contribute to the community’s distrust of police.

Had the “tough on crime” crew been more reasonable over the years and stopped police and the courts from trampling on people’s rights through absurd legal reasoning, perhaps this law would be unnecessary. But when the Virginia Court of Appeals allows a vehicle stop for the sole reason that one of two license plates lights is out (where the law only requires one light and the plate was clearly visible), it is time for the legislature to step in. And that’s exactly what happened. This is how the democratic process is supposed to work.

Elections have consequences. Eventually the scales will tip back the other way. But for now, police in Virginia interested in harassing and profiling have one less weapon at their disposal.

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