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Virginia Appeals Court Sides with Defendant in Firearms Case

On Behalf of | Sep 1, 2022 | Weapons Offenses

In a recent appellate opinion in a Virginia firearms criminal case, the Commonwealth of Virginia appealed a decision by the trial court to grant the defendant’s motion to suppress evidence seized from a vehicle in which he was a passenger. On appeal, the Commonwealth argued that the trial court erred in granting the defendant’s motion to suppress evidence seized during a 2020 search of a vehicle the defendant was in. The Commonwealth claimed that the vehicle’s search was legal because it was supported by probable cause. Examining the facts of the case, the court of appeals disagreed, and affirmed the decision of the trial court.

Facts of the Case

According to the opinion, on July 6, 2020, a Virginia Beach Police officer was on patrol when he heard gunshots and saw a car speeding away from the location of the shots. The officer stopped the vehicle to identify the driver and the passenger, who is the defendant. While speaking with them, the officer noticed a brown cigarette that he believed to contain marijuana. There was no marijuana smell, and the officer did not examine the cigarette or field-test it. He told the defendant that he found what he believed was marijuana, and the defendant responded that he would “take the charge.” The officer advised them that if he did not find any other marijuana in the car, he would not charge them with possession of the drug.

The officer told other officers at the scene that he wanted to search the car for weapons. However, he advised the driver and the defendant that he was searching for more marijuana. The driver did not consent to the officer’s request to search the car. The officer then obtained the key to the locked glove compartment and discovered a handgun. The defendant was charged with possession of a firearm by a felon.


The trial court granted the motion to suppress because the law in effect at the time of the stop classified marijuana possession as a civil offense, punishable by a penalty of up to $25. The trial court held that a reasonable officer would not be authorized to search a vehicle for a civil penalty offense and therefore, he did not have probable cause, granting the motion to suppress.

The Decision

On appeal, the Commonwealth argued that the vehicle’s search did not violate the Fourth Amendment because it was supported by probable cause and thus permissible at the time. The appeals court found that when challenging the granting of a motion to suppress evidence on appeal, the evidence must be viewed in the light most favorable to the defendant, as he was the prevailing party. The Commonwealth argued that the Fourth Amendment permits a search of a vehicle when there is probable cause to believe that contraband will be found in the vehicle, regardless of any criminal penalty. Further, the Commonwealth contended that marijuana remains a contraband substance, and the presence of suspected marijuana established probable cause for the officer to search the vehicle, including the locked glove compartment.

The appeals court held that regardless of the status of marijuana at the time of the offense, under settled precedent, probable cause cannot be established solely on the observation of material that can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes. Further, to support a finding of probable cause, such observations must be combined with some other circumstance indicating criminal activity. The appeals court held that under the totality of the circumstances, the officer’s belief that there was contraband present failed to establish probable cause for the search and that the trial court did not err in granting the defendant’s motion to suppress.

Are You Facing Criminal Firearms Charges in the Commonwealth of Virginia?

If you are facing charges for a firearms crime in Virginia, call our office at Robinson Law, PLLC. We understand that being accused of a crime can be incredibly daunting, and we are committed to standing by your side throughout every step of your case. For high-quality, aggressive representation that you can trust, call us today for a free and confidential consultation at 703-542-3616.