Now, just imagine how obvious a pretext setup a law must be not to pass muster in Virginia where the General Assembly is probably 60% Republican, 20%, conservative Democrat, and 20% other (those figures are guesses - go ask a poliblog if you want the real figures). Anyway, this year it's been presented yet again by Delegate Thomas Davis Rust (whom I believe is a NoVa delegate). He offers the bill with this struck:
No citation for a violation of this section shall be issued unless the officer issuing such citation has cause to stop or arrest the driver of such motor vehicle for the violation of some other provision of this Code or local ordinance relating to the operation, ownership, or maintenance of a motor vehicle or any criminal statuteand this put in its place
A law-enforcement officer may not search or inspect a motor vehicle, its contents, its driver, or any passenger solely because of a violation of this section unless supported by probable cause or consent.The new language is obviously an attempt to quell the fears that this law will be used as a pretext. It's also perhaps the most ineffectual statement of law I've ever seen. For all intents and purposes it just says the officer can't violate the 4th Amendment of the federal constitution. Of course, that's not how pretext stops work.
In a pretext stop an officer pulls over a car for some trivial traffic violation because he has some sort of suspicion which does not rise to the level that he could constitutionally justify the stop. Favorite reasons given are things hanging from the rear view mirror, cracks in windows, loud music, license plate lights which are out, etc. Once the stop is accomplished the officer subjects the car to the "plain view/plain smell" test. If nothing jumps out at him he may stall for the time it takes to do a canine non-search of the vehicle (or, more likely, the dog was there when the officers pulled the target vehicle over). If that doesn't work the officer issues a warning so that a "reasonable person" would know that he's free to drive away from the officer standing 6 inches from his driver's side window and then immediately launches into this conversation:
Officer - You don't have any guns or drugs in your car, do you?None of this runs afoul of the language offered for the statute.
Driver - No, sir.
Officer - Then, it'll be okay if I search the car?
If they were truly serious about making this a primary offense but limiting the scope of its effect the language offered should be something like this:
An officer who has stopped a driver pursuant to this statute may not expand the scope to investigate any other activity.On the other hand, I've whined enough on this board about appellate courts in Virginia relying on legislative intent. Since it is obvious that the intent here is to address the concerns that legislators have about the use of this statute for pretext stops, perhaps the courts will find that an expansion upon a seatbelt stop - except when a violation is in plain sight - is a violation of the 4th Amendment because it was the intent of the General Assembly to have it be a violation of the 4th Amendment. However, I'm not going to hold my breath waiting for that opinion to be issued.
Hopefully the General Assembly will reject it yet again and for at least as many years as it takes to make sure language such as I offered above is added.
via 750 Volts