In Virginia, you can get pulled over for almost anything. That raises the question: what has to happen for a traffic stop to be illegal? Turns out a lot of things need to go in your favor.

In Commonwealth v. Augustus, Record No. 1603-15-1 (Va. Ct. App. 2016), Norfolk police officers observed a dually pickup truck pull over near an apartment complex late at night. One person ran over to the passenger side of the truck, opened the door, leaned in briefly, shut the door, and ran towards the apartments. The truck then pulled away from the curb. The officers then followed the truck as it drove away, suspicious that they may have just seen a drug deal. The officers turned on their sirens, at which point the truck sped up slightly but stayed under the speed limit, swerved slightly a couple of times but stayed within its lane, the driver appeared to almost stand up for a bit, and then the truck pulled over within two blocks. Officers searched the driver and found cocaine on him.

The question on appeal was whether the officers had a reasonable, articulable suspicion that the driver, Mr. Augustus, was engaged in criminal activity based either on what the officers observed outside the apartment complex or how Mr. Augustus reacted to the sirens. If the officers did not have a reasonable, articulable suspicion, as opposed to a mere hunch or general suspicion, then the stop was illegal and the evidence gained from the stop is inadmissible.  That said, the case law in Virginia is very forgiving towards police officers when it comes to reasonable, articulable suspicion. So was the stop legal?

Surprisingly, no. The Court of Appeals held in this case that the stop was illegal and the evidence was inadmissible. The officers did not have a reasonable, articulable suspicion that Mr. Augustus was engaged in drug trafficking. The encounter outside the apartment complex the officers saw may have been generally suspicious, but the Court of Appeals decided that they didn’t really see anything that would have created a specific, reasonable suspicion. The officers didn’t see into the passenger compartment of the truck, so they didn’t see anything change hands or any hand-to- hand contact. Nor did the officers see the individual who approached the truck carry anything to or away from the truck. The officers saw nothing that indicated that some exchange was occurring, as opposed to a mere social encounter. Without seeing anything that indicates some kind of transaction occurred, the officers only had a mere hunch that the driver was involved in a drug deal.

More surprisingly, the Court of Appeals held that there was no reasonable, articulable suspicion that Mr. Augustus had violated traffic laws. The Commonwealth justified the stop by arguing that the driver’s actions after the officers turned on their sirens constituted either eluding, in violation of Virginia Code § 46.2-817, or reckless driving, in violation of Virginia Code § 46.2-853. The fact that the driver weaved, even within his lane, was especially important, as there is binding Virginia case law holding that a traffic stop can be lawful based on a driver weaving their car within their lane.

In a moment of clarity, the Court of Appeals saw Mr. Augustus’ actions not as criminal, but as the understandable acts of a driver surprised by lights and sirens behind him, lacking the criminal intent needed for evading. Further, with regard to the weaving, the Court of Appeals drew a distinction between this case and other cases where traffic stops were based on in-lane weaving. Most of those cases were based on ongoing weaving, such as continuous weaving before the officers turned on their sirens for a distance of a half-mile (Neal v. Commonwealth, 27 Va. App. 233 (1998)) or a mile (Freeman v. Commonwealth, 20 Va. App. 658 (1995)). By contrast, Mr. Augustus only weaved within his lane about three times, all within two blocks, and only after the officers turned on their sirens. Not to mention that the truck stayed within its lane while “swerving”, an impressive feat for a dually truck which was nearly as wide as the lane. Even the arresting officer said that Mr. Augustus’ actions weren’t “outlandish.” None of this conduct indicated that Mr. Augustus was driving recklessly. Therefore no reasonable suspicion existed, the stop was illegal, and the evidence gained from the stop was inadmissible.

So what’s the take away from this? There are things you can’t get pulled over for in Virginia, but it takes a near perfect storm of facts in your favor to make the stop illegal. The officers didn’t see into the passenger compartment at all. The officers didn’t see the person who went to the truck carrying anything. The driver perfectly obeyed the traffic laws before the officers turned on their sirens. Even after the sirens went on, the driver stayed within his lane, stayed below the speed limit, and pulled over quickly. If any of that doesn’t happen, the stop is likely legal and the driver would likely be going to prison for possession of cocaine. Most drivers aren’t as fortunate. Then again most drivers aren’t hiding packets of cocaine in their groins.

Either way, the key, as always, is to be careful to obey the law while driving in Virginia. Yes, that’s difficult, especially in Northern Virginia, where the normal flow of traffic is 10 miles per hour above the speed limit. But following the traffic law, to the letter, is the closest you can get to guaranteeing that you won’t get pulled over, or that you’ll have a chance to beat anything that comes out of getting pulled over.