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A judge ruled Friday that a warrantless police search on a car thought to be containing drugs was conducted illegally.
Two of three people who were in the car at the time of the search — 32-year-old Kristin Leigh Kerns and 35-year-old Robert Dale Atkins Jr. — had felony drug charges against them dropped Friday during a Williamsburg-James City County Circuit Court hearing.
Atkins’ lawyer Joshua Goff argued the Williamsburg Police officer who searched Atkins’ car without a warrant after seeing a smoking device did not have enough reason to perform the search.
The officer testified he responded to the parking lot behind Berrett’s Seafood at around 8 p.m. June 27 after being told by dispatchers people were “shooting up” in a car and found Kerns, Atkins and a third man, Nicklas Brown O’Neill, sitting in a Mercury sedan.
A witness had called 911 earlier and told dispatchers he saw Atkins — who was in the driver’s seat — holding a hypodermic needle up to the interior light and “flicking it to get the bubbles out” while a man in the passenger seat, later identified as O’Neill, tied something to his arm.
The witness testified Friday he saw a woman, later identified as Kerns, appear from one of the Merchants Square shops near the restaurant and get into the back seat of the vehicle, then switch seats with the passenger. The two switched seats several times, he said, and each time the driver held the needle up to the interior light.
When the officer approached the passenger’s side where Kerns was sitting and asked for identification, he saw a metallic smoking device often associated with smoking marijuana in her lap.
The officer determined he had enough reason to search the car without a warrant after seeing the metallic smoking device, which is often called a “one-hitter.”
Goff argued that simply because the device is often used to smoke marijuana does not imply it was an illegal item; he said the one-hitter is also sold for tobacco use.
With the search based solely on that reasoning, the officer did not have probable cause to perform the search, Goff argued.
Assistant Commonwealth’s Attorney Michael Gaten argued the officer performed the search not only because he saw the smoking device but also because of the information provided by the eyewitness.
Substitute Judge Randolph West ruled in Goff’s favor, dropping four felony controlled substance possession charges and one possession of marijuana charge against Atkins and Kerns.
Gaten said the case against O’Neill, who is considered a fugitive after he failed to appear for his preliminary hearing in July, is under review.
Maj. Greg Riley with the Williamsburg Police Department told WYDaily in June that 52 drug-related items were recovered from the vehicle after the search was performed.
The officer testified in November during a preliminary hearing that he found syringes, silver spoons, a straw, pills, a wrapper containing white residue, a flask, a container holding white powder and the ne-hitter containing a green, plant-like substance.
After conducting a search of the vehicle, officers sent the white substances they found in a black bag to the forensics lab for testing. The substance tested positive for heroin.