3.5 Searches

LibraryDefense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

3.5 SEARCHES

3.501 Introduction.

This paragraph will address search issues that arise in traffic offense cases. It will address searches that yield blood samples to test for blood alcohol and searches of vehicles as a consequence of a traffic stop or arrest.

3.502 Blood Alcohol Searches.

Virginia's implied consent statute, section 18.2-268.2 of the Virginia Code, provides that any person who operates a motor vehicle on a Virginia highway is deemed to have consented to a blood alcohol or breath test if arrested for driving while intoxicated or under the influence of alcohol or drugs. For various reasons, the statute may not be applicable, or it may not always be possible to obtain a blood or breath sample to analyze for alcohol content. For instance, the defendant may be unconscious or may have refused to submit to a test; the alleged offense may have occurred on private property where the statute does not apply; or the defendant may be charged with an offense other than driving under the influence. Thus, a warrantless blood draw was justified by exigent circumstances where police were delayed in seeking a blood test due to the severity of the accident and other complications that delayed the officer's request for a blood sample. 852

In Birchfield v. North Dakota, 853 the United States Supreme Court addressed blood tests in DUI prosecutions, the Fourth Amendment, and implied consent. Importantly, the implied consent statute at issue imposed criminal sanctions for refusing a breath or blood test. The Court noted that blood tests require piercing of the skin and extracting a part of the subject's body and are significant bodily intrusions. In Birchfield, the existence of an implied consent statute did not give police authority to take a blood test without a warrant unless an exception to the warrant requirement existed. 854 Birchfield held that, unlike a blood test, a breath test is minimally invasive and does not implicate significant privacy concerns. 855 The taking of one's breath is proper as a search incident to arrest, and the police need not obtain a warrant to take a breath sample. More recently in Mitchell v. Wisconsin, 856 the United State Supreme Court considered what police officers may do in the "narrow but important category of cases . . . in which the driver is unconscious and therefore cannot be given a breath test." The Court held that in those cases, the exigent circumstances doctrine permits a blood test without a warrant.

Virginia courts have upheld the constitutionality of Virginia's implied consent statute because, unlike the North Dakota statute, Virginia's implied consent law no longer imposes criminal sanctions for refusal of a blood test and first provides motorists the option of taking a breath test unless the breath test is unavailable. 857

In Schmerber v. California, 858 the United States Supreme Court held that the state could compel a blood test without a warrant as a search incident to a lawful arrest on the basis of exigent circumstances. In Missouri v. McNeely, 859 the Court clarified, however, that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's search warrant requirement for nonconsensual blood testing in all drunk-driving cases. Instead, exigency in this context must be determined case by case based on the totality of the circumstances. More recently, the United States Supreme Court held in Mitchell v. Wisconsin 860 that the Fourth Amendment does not prohibit the warrantless blood test of an unconscious driver because under such narrow circumstances, the test is justified under the exigent circumstances exception.

The Virginia Court of Appeals had held in Tipton v. Commonwealth 861 that, irrespective of implied consent, the results of a blood or breath test may be admitted into evidence over the defendant's objection based on Schmerber. But in Bristol v. Commonwealth 862 the court rejected that principle, holding that the test was not admissible under an exigent circumstances exception and that admitting the test under such an exception would effectively undermine the implied consent procedures mandated by section 18.2-268.2 of the Virginia Code.

In United States v. Blakeney, 863 the Fourth Circuit upheld a search warrant for a sample of the defendant's blood where the affidavit described a severe accident combined with the odor of alcohol and the defendant's combative behavior at the scene.

3.503 Searches Incident to Traffic Arrests.

A. In General.

Case law defines the circumstances under which the police may conduct a warrantless search of the person and vehicle of a driver incident to a lawful arrest, and the extent of such a search. In United States v. Jones, 864 the United States Supreme Court confirmed that a vehicle is an "effect," as that term is used in the Fourth Amendment's prohibition against unreasonable searches and seizures. Motorists have a reasonable expectation of privacy in their automobiles. 865 That is true even where the driver lawfully occupies a rental car, but is not listed on the rental agreement. 866

The installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constituted a "search." 867 In Florida v. Harris, 868 the Court held that the "alert" of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. Relying on the "flexible, common-sense standard" of probable cause of Illinois v. Gates, 869 the Court held that a court can presume, subject to any conflicting evidence offered, that the dog's alert provides probable cause to search, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. 870

B. "Immediate Control."

Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest if at the time of the search the arrestee "is within reaching distance of the vehicle" or if "it is reasonable to believe the vehicle contains evidence of the offense of arrest." 871 Although the search of a vehicle incident to an arrest is limited, there are established exceptions to the warrant requirement that may authorize a vehicle search when demanded by "safety or evidentiary concerns." 872 First, under Michigan v. Long 873 an officer may search a vehicle's passenger compartment when the officer has a reasonable suspicion that an individual, whether or not the arrestee, is "dangerous" and might access the vehicle "to gain immediate control of weapons." 874 Second, if there is probable cause to believe that a vehicle contains evidence of criminal activity, by which the Court means "the crime of arrest," an officer may search any area of the vehicle in which the evidence might be found. 875 In many cases, when the recent occupant of a vehicle is arrested on a traffic offense, there will be no reasonable basis to believe that the vehicle contains relevant evidence. 876

Where the officer has probable cause to believe the vehicle contains evidence of a crime, a warrantless search of the vehicle is permissible under the automobile exception to the warrant requirement. 877 Although Arizona v. Gant 878 limits authority to search an automobile, other exceptions such as "plain view" may come into play. In considering the seizure of a weapon from the defendant's vehicle, notwithstanding Gant, the court in United States v. Rumley 879 held that an officer rightfully seized a weapon where the officer discovered a pistol while standing beside the defendant's truck after asking a passenger to step out of the vehicle. The defendant argued that the deputy's request that the passenger step out was unconstitutional under Gant's limitation on vehicle searches. The court disagreed, observing that long before Gant, the Supreme Court held that an officer conducting a traffic stop may, as a safety measure, order any passenger to exit the vehicle as a matter of course. 880 "Nothing in Gant, which limits permissible searches incident to arrest, undermines the bright-line rule established in Wilson." 881 Even if the officer impermissibly intended to search the vehicle, he could lawfully order the passenger out and seize evidence in plain view.

The Supreme Court in numerous cases has approved the warrantless search of a person who has been lawfully arrested and the area within his or her immediate control. 882

C. Search Incident to Summons.

In the absence of a valid arrest, the police generally have no right to search the vehicle in the course of a routine traffic stop that results in the issuance of a summons, without independent probable cause that the vehicle contains contraband, evidence, or fruits of a crime. 883 Where a motorcycle is parked within the curtilage of a home, officers do not have authority to search pursuant to the "automobile exception." 884

D. Weapons Search.

No "pat-down" or "frisk" of a driver or passenger is permitted unless there is an articulable suspicion that the driver or passenger is armed. An officer's observation that a suspect may have been involved in a drug purchase is sufficient to support a reasonable belief that the suspect may be armed and dangerous, and a pistol discovered in such a search was admissible. 885 A pat-down search for weapons requires "a reasonable belief that the person is armed and presently dangerous" and a reasonable articulable suspicion that the person searched is also engaged in wrongdoing. 886 But when a vehicle is stopped for suspected weapons violations, the courts consider the totality of the circumstances and view information possessed by the police at the time of the initial pat-down in conjunction with information acquired after the pat-down. 887 Where officers received specific information that a suspect had been armed and dangerous on previous occasions based on his criminal record of arrests for unlawful possession of a firearm and possession...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT