- The Washington Times - Saturday, April 19, 2008

RICHMOND (AP) — A sharply divided Virginia Supreme Court reined in police powers yesterday, reversing convictions in two cases because officers lacked probable cause to search a vehicle and frisk a man after a traffic stop.

The court split 4-3 in both opinions, which focused on the Fourth Amendment’s protection against unreasonable search and seizure.

In one case, the justices ruled that a Henrico County officer improperly searched a seemingly intoxicated woman’s vehicle after spotting what appeared to be hand-rolled cigarettes in the interior door handle. Officer C.M. Nelson arrested Frances Grace Buhrman for marijuana possession based on the color of the smokes and a faint odor.

A subsequent search turned up marijuana, cocaine and heroin in Mrs. Buhrman’s car and purse. She was sentenced to six months in prison for drug possession after the trial court refused to suppress evidence gathered during the search.

However, the state Supreme Court ruled Officer Nelson lacked probable cause to initiate the search. The court relied on its ruling in a 2005 case reversing the conviction of a man whose car was searched after police spotted him asleep in the passenger seat, holding a partially burned, hand-rolled cigarette.

Prosecutors claimed the Buhrman case was different because of her behavior, but the court disagreed.

“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,” Justice Lawrence L. Koontz Jr. wrote in the majority opinion.

Judge Koontz also wrote that the officer never clearly identified the faint odor and the color of the cigarettes as being associated with marijuana.

Justice Donald W. Lemons said in a dissenting opinion that the majority seemed to be demanding clear and convincing evidence rather than probable cause.

“On appellate review, we are to consider the totality of the circumstances and not substitute our judgment for that of a trained police officer,” Judge Lemons wrote in the dissent, which was joined by Judges Cynthia D. Kinser and S. Bernard Goodwyn.

The second case involved a pat-down search during a traffic stop in a high-crime area of Danville. The court said the character of the neighborhood was an insufficient basis for frisking Tyrone Junior McCain without his consent.

Officer R.V. Worsham saw Mr. McCain and another person walk up to a house where the officer was involved in an undercover drug buy a few months earlier. After about a minute, the men got in a vehicle and drove away, and Officer Worsham followed.

The officer stopped the vehicle for a traffic infraction and called for back up. Officer E.K. Thompson arrived and asked Mr. McCain if he would consent to a pat-down search. Mr. McCain refused, but Officer Thompson frisked him anyway and seized a gun and cocaine.

The Supreme Court said the character of the neighborhood did not provide enough justification to frisk Mr. McCain during an otherwise routine traffic stop.

“A person’s Fourth Amendment rights are not lessened simply because he or she happens to live or travel in a ‘high crime’ area,” Judge Goodwyn wrote for the majority.

Senior Justice Harry L. Carrico wrote in a dissenting opinion that Officer Worsham’s experience at the house, which the officer had related to Officer Thompson, justified the search.

“The drug buy obviously made a lasting impression upon him; it was still fresh in his mind; and it is a relevant circumstance in an objective assessment of the reasonableness of his actions,” Judge Carrico wrote.

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