Judge: Cops can stop cars solely on the odor of pot

NORFOLK

Police can smell marijuana while driving around town with their windows up, and officers are authorized to pull over cars if they do.

That is what Circuit Judge Everett Martin ruled Thursday in the case of a man arrested last December after such a traffic stop.

“I don’t find it inherently incredible,” Martin said before finding the stop was legal. “I find it quite believable.”

Officer Robert Frenier testified he was driving in the 3700 block of E. Princess Anne Road on Dec. 7 when he smelled marijuana through his patrol car’s vents. He said he and two other officers in his vehicle believed the smell was coming from the Dodge Neon in front of them.

Frenier followed the other car for about four blocks before pulling it over near Rush Street.

“I wanted to make sure it was coming from where I thought,” he said, explaining he was a car length or two behind most of that time.

Frenier testified one of the car’s brake lights was out at the time of the stop. But, he stressed, the sole reason for the stop was the smell of marijuana he and the other officers recognized. He did not mention the brake light in his report and could not testify with certainty Thursday which one was out.

A search of the vehicle found no marijuana, but the driver told police occupants had previously smoked pot in the car, Frenier testified.

Police said they did find a handgun in a purse near backseat passenger Deontae Poole, 25, of Norfolk. Poole was charged with illegal possession of a firearm by a convicted felon.

S.W. Dawson, Poole’s attorney, argued in court Thursday it was not possible for the officers to smell marijuana while driving behind the Neon – especially since no marijuana was found in the car. He said he wouldn’t have a problem with the search if Frenier had pulled over the car because of the brake light and then smelled marijuana when he approached.

“If the court finds what happened here to be reasonable, I can’t imagine what it wouldn’t find reasonable,” he said.

Assistant Commonwealth’s Attorney Alexandra Vakos argued the opposite, noting Frenier and Officer John Zavros testified they smelled marijuana coming from the vehicle before initiating the stop. She said they could have smoked all of the marijuana or discarded it without the officers noticing.

“The smell alone gave them reasonable suspicion,” she said.

A jury trial is scheduled June 5.

It is unclear how often police officers in South Hampton Roads stop vehicles because they smell marijuana through their car’s air vents. Law enforcement officials in Portsmouth, Suffolk, Virginia Beach and even Norfolk said they were not aware of any such cases in their jurisdictions.

A Chesapeake policeman testified in 2012 he regularly tried to sniff out pot smokers from behind the wheel. A judge in that case ruled a vehicle’s search was legal because officers approached after it was parked and again smelled burning marijuana.

Another Chesapeake officer testified last year that he stopped a car because he smelled unburned marijuana emanating from it. About 2.5 grams of marijuana were found in the driver’s pants. A judge ruled that stop was illegal.

Scott Daugherty, 757-222-5221, scott.daugherty@pilotonline.com