Virginia lawmakers pass bill limiting pretextual traffic stops, barring searches based on smell of marijuana

Legislation banning police from initiating searches based on the smell of marijuana and making traffic stops for an array of minor infractions is heading to Gov. Ralph Northam’s desk after clearing the General Assembly on Friday.

The bill is among the first in a wide-ranging package of police reforms to win final passage in the House and Senate during a special legislative session that began in August.

“A disproportionate number of people pulled over for minor traffic offenses tend to be people of color, this is a contributor to the higher incarceration rate among minorities,” said Del. Patrick Hope, D-Arlington, who carried the bill in the House. Sen. Louise Lucas, D-Portsmouth, carried the legislation in the Senate.

If signed by Northam, the laws would prohibit police from making traffic stops when they see vehicles with non-functioning brake and tail lights, a broken or loud exhaust system, tinted windows, objects dangling from a rearview mirror, someone smoking in a car with a minor present or a state inspection that is less than four months past its expiration date.

The violations remain on the books, but police could only issue citations if a driver is stopped for a more serious infraction, such as speeding or reckless driving. The legislation also reduces jaywalking to a secondary offense.

Lawmakers argued police often use the violations as a pretext to stop and search people they suspect of other crimes, enabling racial profiling.

The law also bars police from searching people or their vehicles when they say they smell marijuana — a practice that has been the subject of long-running complaints among public defenders and defense lawyers both in Virginia and around the country. Last year, a New York judge grew so fed up with hearing the justification in court that she openly accused police of lying, writing in an opinion that “the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop.”

The legislation cleared both chambers over strong opposition from Republican lawmakers, who have called the Democrats’ police reform agenda an affront to the law enforcement community. “I feel we’re villainizing our police departments,” said Sen. Bill DeSteph, R-Virginia Beach.

Meanwhile police have argued the bill will make roads more dangerous and hamper their investigations.

“Does anybody really think that it’s appropriate or safe for a vehicle on Interstate 95 to be travelling without tail lights at 11 at night?” Roanoke County Police Chief Howard Hall said last month. “Does anybody not think that law enforcement should deal with that situation?”

On Friday, lawmakers also gave final passage to legislation that would allow the attorney general’s office to open investigations into police departments that engage in discriminatory practices. The bill was filed by Lucas, who had unsuccessfully attempted to get the Department of Justice to investigate the Portsmouth Police Department’s hiring practices. She argued that because the DOJ under Trump has not pursued such pattern and practice investigations, the state should step in to fill the investigatory gap.

The day before the legislative session began, Portsmouth police filed criminal charges against Lucas alleging she conspired to damage a Confederate statue, though she has not publicly suggested she believes the decision was linked to her proposed legislation.

Other legislation finalized Friday will:

• Give the state authority to investigate conditions in detention centers operated by Farmville and Caroline County on behalf of ICE. Both facilities have been seen large COVID-19 outbreaks during the pandemic;
• Block judges from second guessing a local prosecutor’s decision to drop criminal charges in cases they don’t wish to pursue — a response to judges in jurisdictions that prohibited commonwealth’s attorneys from dismissing marijuana charges before the drug was decriminalized; and
• Increase the penalty for making false 911 calls from a misdemeanor to a felony in instances where the inaccurate report was motivated by race, religion, gender or other discriminatory motive.

Lawmakers are still debating legislation that would establish civilian review boards, create a mental-health emergency response protocol, ban chokeholds and create a statewide code of conduct for police.