Virginia Court of Appeals says probable cause alone isn’t enough for warrantless search 

After a Culpeper deputy searched a woman who concealed drugs in her pants during a traffic stop, the Virginia Court of Appeals ruled law enforcement must have more than probable cause to suspect someone is carrying contraband in order to search that person without a warrant.

“Under the Fourth Amendment, probable cause of contraband is the standard to obtain a warrant, not the standard to search a person without one,” wrote Judge Lisa M. Lorish in an opinion issued Wednesday.

However, she continued, “The number of exceptions to the Fourth Amendment warrant requirement makes this an exceedingly difficult analysis, and we sympathize with the trial judge here.”

The July 5 ruling reverses a Culpeper County Circuit Court decision that the drugs found in the search could be included in the trial of Renee Parady, one of three people stopped by Culpeper Sheriff’s Deputy Dustin Tharp in the early hours of Jan. 28, 2021. Parady had asked the court to block the use of the drugs as evidence on the grounds that they had been obtained through an unconstitutional warrantless search.

Parady ultimately pleaded guilty to felony possession of a controlled substance but reserved the right to appeal the court’s denial of her request to suppress the drugs as evidence.

Virginia argued in support of including the drugs as evidence, saying Tharp had probable cause to believe Parady was concealing narcotics, the search was done as part of an arrest, and the search was justified by “exigent circumstances” — in this case, the fear that Parady would destroy the drugs if Tharp had to wait to get the warrant.

The Culpeper Circuit Court previously rejected the third argument, finding that because Parady was placed in the back of a police vehicle and three officers were at the scene, Tharp could have gotten a search warrant without risking the destruction of the drugs.

The Court of Appeals on Wednesday rejected the other two arguments. Tharp had not actually arrested Parady the night of the search, the judges noted, and she would not be arrested until nearly two months later. The court concluded her search could not be justified on that basis, quoting the U.S. Supreme Court ruling in United States v. Robinson that “it is the fact of the lawful arrest which establishes the authority to search.” (While Virginia argued the officer had not arrested Parady at the scene because she said she had tested positive for COVID-19, the court of appeals pointed out Tharp arrested the driver on a separate charge, even though he said he had been quarantining in a house of sick people, including Parady.)

Finally, the court ruled that the officer having probable cause to arrest Parady was not sufficient grounds to search her without a warrant.

“The Commonwealth bears the burden of proving that a warrantless search fits under an exception to the warrant requirement of the Fourth Amendment,” the court wrote. “While the exceptions are many, mere probable cause is not one of them.”

The case will now return to Culpeper Circuit Court.

by Sarah Vogelsong, Virginia Mercury

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