Opinion
0243-22-4
02-28-2023
Dana Mark Camann, Jr., Appellant, v. Commonwealth of Virginia, Appellee.
(Jason E. Ransom; Ransom/Silvester, on brief), for appellant. Appellant submitting on brief. Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
UNPUBLISHED
Appeal Dated: March 28, 2023
Upon a Petition for Rehearing En Banc
FROM THE CIRCUIT COURT OF FREDERICK COUNTY William W. Eldridge, IV, Judge Circuit Court Nos. CR21000213-00 through CR21000216-00
(Jason E. Ransom; Ransom/Silvester, on brief), for appellant. Appellant submitting on brief.
Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Judges Athey, Chaney and Raphael Argued by videoconference
Before the Full Court
On March 14, 2023 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on February 28, 2023, and grant a rehearing en banc on the issue(s) raised in the petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.
The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and served on opposing counsel.
The guidelines for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
MEMORANDUM OPINION [*]
STUART A. RAPHAEL, JUDGE.
While investigating a public-indecency complaint, the sheriff's deputies here spoke with appellant Dana Mark Camann, Jr., in the parking lot of a convenience store. During that encounter, one deputy noticed that Camann was hiding something under his shoe and told him to move his foot. Camann did so, revealing aluminum foil with burnt residue and a straw. The deputies arrested Camann and searched his person, discovering a white powder in a cellophane wrapper in his wallet and pills in a pill bottle in his pocket. Testing of the white powder revealed that it contained two controlled substances: fentanyl and etizolam. The pills tested positive for two other controlled substances. Camann was convicted of three felony counts of possessing a Schedule I or II controlled substance and one misdemeanor count of possessing a Schedule IV controlled substance, all in violation of Code § 18.2-250.
We reject Camann's argument that the trial court erred in failing to grant his motion to suppress the evidence. While we agree that a Fourth Amendment seizure occurred when the deputy told Camann to move his foot, the directive was part of a lawful investigative detention that was supported by reasonable suspicion. Upon discovering the burnt residue on the improvised smoking device that Camann was hiding, the deputies had probable cause to arrest him for drug possession. They then conducted a lawful search incident to arrest, discovering the narcotics that he was convicted of possessing.
Judge Chaney dissents from this conclusion.
We agree with Camann, however, that there was insufficient evidence to support his conviction for felony possession of etizolam. While Code § 18.2-250 permits a defendant to be convicted for knowingly possessing a controlled substance without knowing which controlled substance he has, it does not impose strict liability for each subsequent controlled substance that may be found in the mixture. Because the Commonwealth failed to prove that Camann knew that the white powder in his possession contained more than one controlled substance, we reverse his conviction for possessing etizolam.
Judge Athey dissents from this conclusion.
BACKGROUND
After 1:00 a.m. on September 10, 2020, Deputies Spears and Russell of the Frederick County Sheriff's Office responded to a report of a man masturbating outside a 7-Eleven convenience store. When Deputy Russell arrived, Camann was standing on a sidewalk in the parking lot, with his back against the side of the store.
Deputy Russell was the first on the scene. Deputy Spears arrived soon after, and his body-camera footage was introduced into evidence. Deputy Russell conversed briefly with Camann before entering the store to interview the customer and employee who had reported the incident. While Deputy Russell was inside, Deputy Spears engaged in "normal small talk" with Camann before telling him why the police had been called. Camann denied any wrongdoing and continued to stand in place. Deputy Russell returned, telling Camann that witnesses claimed to have seen him masturbating.
Camann reacted indignantly, but as he shifted his weight back and forth, Deputy Spears noticed that Camann appeared to be hiding something under his left shoe. After Camann moved his foot enough to offer a glimpse of the aluminum foil underneath, Deputy Spears said, "move your foot, move your foot." Camann did so, revealing a blue plastic straw and a piece of aluminum foil with burnt residue. From his training and experience, Deputy Spears knew that people commonly "use aluminum foil and plastic straws" to smoke narcotics. Upon seeing the burnt residue on the aluminum foil, Spears decided to arrest Camann.
After placing Camann in handcuffs, Deputy Spears read him his Miranda rights and subsequently searched his pockets. Spears found more foil and a straw, similar to what Camann had been hiding under his foot, a cellophane wrapper in Camann's wallet containing a white powdery substance, and pills in a pill bottle.
Miranda v. Arizona, 384 U.S. 436 (1966).
Subsequent testing revealed that the white powdery substance was a mixture of fentanyl, a Schedule II controlled substance, and etizolam, a Schedule I controlled substance. The mixture weighed 0.056 gram. One pill in the pill bottle contained amphetamine, a Schedule II controlled substance; another contained clonazepam, a Schedule IV controlled substance. The aluminum foil and straw that Camann was hiding under his shoe were not tested for narcotics. The grand jury returned four indictments against Camann: three felony counts of possessing a Schedule I or II controlled substance and one misdemeanor count of possessing a Schedule IV controlled substance.
See Code §§ 54.1-3446 (Schedule I), 54.1-3448 (Schedule II).
See Code § 54.1-3452 (Schedule IV).
Camann moved to suppress the evidence, claiming that the search and seizure violated his Fourth Amendment rights. The trial court denied the motion, finding: (1) the interaction between Deputy Spears and Camann began as a consensual encounter; (2) Deputy Spears's asking Camann to move his foot was "not . . . an order" and was "not a seizure"; (3) there was no expectation of privacy in the "public area" beneath Camann's foot; (4) there was probable cause to arrest Camann after seeing the straw and aluminum foil with burnt residue; and (5) the drugs in Camann's pockets were legally discovered as part of a search incident to arrest.
Judge Alexander Iden presided at the hearing on the motions to suppress.
At the jury trial that followed, the Commonwealth's evidence consisted of Deputy Spears's testimony, his body-camera footage, and a certificate of analysis detailing the results of the lab tests on the drugs found in Camann's possession. The court denied Camann's motion to strike the Commonwealth's evidence. Camann then testified. He admitted that he was a drug addict, that he had tried to conceal the foil underfoot, that the foil contained "a drug," and that the items found in his pockets were all his. He admitted knowing that the white powder was fentanyl but denied knowing that it also contained etizolam, a drug he'd never heard of.
The court denied Camann's renewed motion to strike the etizolam charge. Relying on Sierra v. Commonwealth, 59 Va.App. 770 (2012), the court held that Camann "b[ore] the risk . . . of punishment for whatever substance was there." Over Camann's objection, the jury was instructed that "[t]he Commonwealth [wa]s not required to prove that [Camann] knew the precise substance he [wa]s alleged to have possessed, only that he knew the substance was a controlled substance." In closing, the prosecutor argued, based on that instruction, that "You don't need to know whether it is heroin or fentanyl or etizolam or cocaine or anything else, amphetamines, meth. As long as you know that you are possessing something illegal you are guilty of every one of those things ...."
The jury convicted Camann on all four charges. Although the original indictments did not identify the specific drug involved, the verdict form signed by the jury foreperson correlated the drugs to the indictments: CR21-213 (amphetamine); CR21-214 (fentanyl); CR21-215 (etizolam); and CR21-216 (clonazepam). The court entered judgment on the jury verdict and sentenced Camann to two years' incarceration with one year suspended for felony possession of amphetamine, two years with two years suspended on each of the felony convictions for possessing fentanyl and etizolam, and 180 days with 180 days suspended on the misdemeanor conviction for possessing clonazepam. Camann noted a timely appeal.
ANALYSIS
Camann challenges the trial court's denial of his motion to suppress and the sufficiency of the evidence to support his felony conviction for possessing etizolam.
A. The trial court did not err in denying the suppression motion (Assignment of Error 1).
Camann argues that the trial court erred in denying his motion to suppress the narcotics seized from his wallet because the search of his wallet was not supported by probable cause. If a person is "illegally seized within the meaning of [the] Fourth Amendment . . . any evidence derived as a result of that seizure [i]s subject to suppression under the exclusionary rule." Watson v. Commonwealth, 19 Va.App. 659, 662 (1995). "The exclusionary rule operates not only against evidence seized and information acquired during an unlawful search or seizure but also against derivative evidence discovered because of the unlawful act." Id. (quoting Warlick v. Commonwealth, 215 Va. 263, 265 (1974)).
Camann's assignment of error relates only to the narcotics seized from Camann's "wallet"-the fentanyl and etizolam. The assignment of error omits any reference to the pills found in the pill bottle. Accordingly, this appeal involves no challenge to Camann's convictions for possessing amphetamine [CR21-213] and clonazepam [CR21-216]. See Rule 5A:20(c)(1) ("Only assignments of error listed in the brief will be noticed by this Court."); Riddick v. Commonwealth, 72 Va.App. 132, 146 (2020) (stating that an appellate court "cannot 'consider issues . . . not encompassed by [the] assignment of error'" (quoting Banks v. Commonwealth, 67 Va.App. 273, 290 (2017))).
"When challenging the denial of a motion to suppress evidence on appeal, the defendant bears the burden of establishing that reversible error occurred." Street v. Commonwealth, 75 Va.App. 298, 303-04 (2022) (quoting Mason v. Commonwealth, 291 Va. 362, 367 (2016)). "Appellate review of a suppression ruling involving a Fourth Amendment challenge presents a mixed question of law and fact." Id. at 304 (citation omitted). "'This Court is "bound by the trial court's findings of historical fact unless plainly wrong or without evidence to support them."' 'However, the Court reviews de novo the overarching question of whether a search or seizure violated the Fourth Amendment.'" Moreno v. Commonwealth, 73 Va.App. 267, 274 (2021) (citation omitted) (quoting Williams v. Commonwealth, 71 Va.App. 462, 475 (2020)). "[O]ur review includes evidence presented at both the suppression hearing and the trial." Id. (quoting Williams, 71 Va.App. at 475).
"Police-citizen confrontations generally fall into one of three categories." McGee v. Commonwealth, 25 Va.App. 193, 198 (1997) (en banc). All three types occurred in this case. "First, there are consensual encounters which do not implicate the Fourth Amendment." Id. Camann admits that his encounter with the deputies was consensual up until Deputy Spears told him to move his foot. Second, "there are brief investigatory stops, commonly referred to as 'Terry' stops, which must be based upon reasonable, articulable suspicion that criminal activity is or may be afoot." Id.; see Terry v. Ohio, 392 U.S. 1, 27 (1968). We conclude in the first section below that Deputy Spears's statement to Camann to "move your foot" transformed the consensual encounter into an investigative detention. But Spears's directive was a minimal imposition on Camann's liberty, and it was supported by reasonable suspicion that Camann was engaged in criminal activity. The third type of encounter involves "'highly intrusive, full-scale arrests' or searches which must be based upon probable cause to believe that a crime has been committed by the suspect." McGee, 25 Va.App. at 198 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). We conclude in the second section below that Spears's discovery of the burnt residue on the improvised smoking device that Camann was hiding under his shoe gave Spears probable cause to arrest Camann for possessing a controlled substance.
1. The deputy's request for Camann to move his foot was an investigative detention supported by reasonable suspicion.
The admissibility of the narcotics ultimately found in Camann's pockets depends on whether Deputy Spears's telling Camann, "move your foot," constituted an illegal seizure. To answer that question, we must consider (1) whether Camann was seized at all when Deputy Spears told him to move his foot and, if so, (2) whether the seizure was an investigatory detention, for which reasonable suspicion was required, or an arrest, which would have required probable cause. McGee, 25 Va.App. at 198. Camann argues that he was seized because Deputy Spears's words signaled to him that he was not free to leave.
The Commonwealth misplaces its contention that Camann had no reasonable expectation of privacy in the discarded foil under his shoe. The Commonwealth likens what happened here to searching the garbage left for the trash collector in a public place, which is not forbidden by the Fourth Amendment. See California v. Greenwood, 486 U.S. 35, 40-42 (1988). The Commonwealth contrasts that scenario with searching someone's shoe while the person is wearing it, where a reasonable expectation of privacy attaches. See Sheler v. Commonwealth, 38 Va.App. 465, 477-78 (2002). While Camann argued in the trial court that Deputy Spears's telling him to move his foot was both a search and a seizure, he pursues only the seizure claim here. In other words, Camann does not argue that the space under his shoe was illegally searched; he claims that his person was illegally seized when Spears told him to move his foot. "The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property." Horton v. California, 496 U.S. 128, 133 (1990) (emphases added). At this step of the inquiry, we evaluate whether Camann's person was illegally seized, not whether the space under his foot was illegally searched.
We agree that Camann was seized when Deputy Spears told him to move his foot, not because Camann was not free to leave, but because a reasonable person in Camann's position would not have felt free to keep his foot planted. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry, 392 U.S. at 19 n.16. A seizure ordinarily occurs when "a reasonable person would have believed that he was not free to leave." Piggott v. Commonwealth, 34 Va.App. 45, 49 (2000) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). But "when the person . . . has no desire to leave, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter." Florida v. Bostick, 501 U.S. 429, 435-36 (1991). Rather, "the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Id. at 436.
Camann wanted to remain where he stood-he wanted to keep his foot firmly planted. We must therefore ask whether a reasonable person would have felt free to remain where he stood after Deputy Spears said, "move your foot." The Commonwealth argues that we are bound by the trial court's finding that Deputy Spears's statement was a request, not a demand. Even if it was a request, however, the relevant inquiry is the effect of that request on a reasonable person in Camann's position. It is not dispositive that the statement might not have been an order. The question is whether a reasonable person would have felt "free to decline the officers' requests." Bostick, 501 U.S. at 436.
We conclude that a reasonable person in Camann's position would not have felt free to defy the deputies by keeping his foot planted. Camann had a wall at his back and a deputy on either side of him. The deputies told him that he had been accused of masturbating outside the 7-Eleven. "[W]hen a police officer confronts a person and informs the individual that he or she has been specifically identified as a suspect in a particular crime which the officer is investigating, that fact is significant among the 'totality of the circumstances' ...." McGee, 25
Va.App. at 200. That revelation can "'convey a message that compliance with their requests is required' and 'that failure to cooperate would lead only to formal detention.'" Id. (first quoting Bostick, 501 U.S. at 435; and then quoting United States v. Berry, 670 F.2d 583, 597 (5th Cir. 1982)).
We disagree with the Commonwealth that Camann "voluntarily moved his foot in response to the request." Camann's movement was not "voluntary" because a reasonable person would not have felt free to decline Deputy Spears's request. That Camann instantly complied- even though he did not want to-suggests that he thought he had to. Under the circumstances, that was a reasonable conclusion. The "seizure of a person requires either physical force by the police officer or, 'where that is absent, submission to the assertion of authority.'" Beasley v. Commonwealth, 60 Va.App. 381, 392 (2012) (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)). Camann submitted to the deputy's authority here.
We must next determine whether that seizure was made during an investigative detention or an arrest, for that characterization determines the level of suspicion required to justify the deputies' actions. McGee, 25 Va.App. at 198. "An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion," Ornelas v. United States, 517 U.S. 690, 693 (1996), while a warrantless arrest requires probable cause to believe that a crime has been or is being committed, see Cromartie v. Billings, 298 Va. 284, 300 (2020). The Supreme Court of the United States has recognized the "difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest." United States v. Sharpe, 470 U.S. 675, 685 (1985). There are no rigid time limitations on investigative detentions or bright-line rules for evaluating whether a seizure is an investigatory stop or a de facto arrest. Id. The "scope of the intrusion permitted [during an investigatory stop] will vary" with each case. Florida v. Royer, 460 U.S. 491, 500 (1983). "The test is whether the police methods were calculated to confirm or dispel the suspicion quickly and with minimal intrusion upon the person detained." Washington v. Commonwealth, 29 Va.App. 5, 15 (1999).
Applying that test, we find that Deputy Spears's request that Camann move his foot was part of an investigative detention, not an arrest, because it was a minimal intrusion upon Camann's liberty. Camann did not have to move from where he was standing on the sidewalk of the convenience store, let alone leave the premises. Deputy Spears's suspicions would have been confirmed or refuted in an instant by Camann's simply moving his foot an inch or two in any direction. Such a minimal intrusion on liberty is the hallmark of an investigative detention.
To justify telling Camann to move his foot, therefore, Deputy Spears needed only "reasonable, articulable suspicion that [Camann was] engag[ed] in, or [wa]s about to engage in, criminal activity." Turner v. Commonwealth, 75 Va.App. 491, 500 (2022) (quoting McGee, 25 Va.App. at 202). "The requisite level of belief, when calibrated to reasonable suspicion, is less than probable cause, less than a preponderance, and certainly less than beyond a reasonable doubt." Hill v. Commonwealth, 297 Va. 804, 817 (2019). A reasonable suspicion must not be "'the product of a volatile or inventive imagination' or one 'undertaken simply as an act of harassment.'" Id. (quoting Terry, 392 U.S. at 28). "In reviewing whether an officer possessed reasonable, articulable suspicion sufficient to justify a seizure, a reviewing court must consider 'the totality of the circumstances-the whole picture.'" Mitchell v. Commonwealth, 73 Va.App. 234, 247 (2021) (quoting Sokolow, 490 U.S. at 8).
Deputy Spears had reasonable suspicion to tell Camann to move his foot. Camann was standing in place, noticeably keeping his left shoe planted as he shifted his weight back and forth. Deputy Spears could see a piece of aluminum foil sticking out from beneath Camann's shoe. Through his training and experience, Spears knew that aluminum foil is often used with a straw to smoke narcotics. Although Spears did not at first see the straw or the burnt residue, a police officer in Deputy Spears's position could form a reasonable belief that Camann was engaged in criminal, drug-related activity and trying to hide the evidence. Thus, Deputy Spears had "more than a hunch"; his suspicion "flow[ed] reasonably from articulable facts." Asble v. Commonwealth, 50 Va.App. 643, 648 (2007). What is more, the reasonableness of Spears's suspicion was corroborated by Camann's admission at trial that he was "intentionally hiding what was under [his] foot" because he "knew it was a drug and . . . knew that it is illegal to possess drugs." We thus conclude that the investigatory detention that occurred when Deputy Spears said "move your foot" was properly supported by reasonable suspicion.
2. The deputies' discovery of burnt residue on the improvised smoking device Camann was concealing gave them probable cause to arrest him for possession of a controlled substance.
We agree with the trial court that the deputies' discovery of what Camann was hiding under his foot gave them probable cause to arrest him. "Probable cause exists when the facts and circumstances known to the officer 'are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.'" Park v. Commonwealth, 74 Va.App. 635, 646 (2022) (quoting Al-Karrien v. Commonwealth, 38 Va.App. 35, 47 (2002)). "This is an objective standard that focuses on the totality of the facts and circumstances. It involves a much lower evidentiary standard than proof beyond a reasonable doubt." Id. (citation omitted).
In assessing probable cause, "we must consider what the 'totality of the facts and circumstances' would have 'reasonably meant to a trained police officer.'" Curley v. Commonwealth, 295 Va. 616, 622 (2018) (quoting Jones v. Commonwealth, 279 Va. 52, 59 (2010)). That "includes, of course, an officer's 'common-sense conclusions about human behavior.'" Id. at 623 (quoting Dist. of Columbia v. Wesby, 138 S.Ct. 577, 587 (2018)). Though an officer's "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis," Whren v. United States, 517 U.S. 806, 813 (1996), "a police officer may draw inferences based on his own experience in deciding whether probable cause exists," Ornelas, 517 U.S. at 700.
When Camann moved his foot, Deputy Spears discovered a straw alongside the aluminum foil that Camann was concealing. As Spears testified and as the body-camera footage showed, the foil contained burnt residue. As noted above, Deputy Spears testified that, based on his "training and experience," it is common for people to use aluminum foil and a plastic straw to smoke narcotics. To a layperson, those items might seem like litter, but to Deputy Spears, whose testimony about his "training and experience" we must give "due weight," Ornelas, 517 U.S. at 700, they reasonably suggested drug possession.
Finding burnt residue on an improvised device for smoking narcotics created probable cause to believe that Camann was in possession of a controlled substance. We have held (and our Supreme Court has affirmed) that "the finding of white powder residue on a cut-off straw by an officer experienced in investigating crimes involving narcotics is sufficient to constitute probable cause"-in that case, probable cause to justify a warrantless search of the defendant's vehicle. Carson v. Commonwealth, 12 Va.App. 497, 503, aff'd en banc, 13 Va.App. 280 (1991), aff'd, 244 Va. 293 (1992).
We also found the appearance of drug residue sufficient to constitute probable cause in Commonwealth v. Ramey, 19 Va.App. 300, 304 (1994). The police officer there found the suspect in possession of an improvised smoking device-a plastic bottle covered with foil that was punched with holes-and the foil had "carbon burn marks on it." Id. at 301. "Because of the officer's experience with drugs, the bottle appeared to him to be a homemade 'bong' used for smoking illegal drugs." Id. "The officer seized the device and arrested the defendant, who was later charged with possession of cocaine because of cocaine residue on the foil." Id. at 302. We held that the officer had probable cause to seize the device despite that he could not determine what drug had been smoked. Id. at 304. "Because of the distinctive character of the plastic bottle with foil on top and the highly unlikely event that it would have a legitimate use, the officer had probable cause to believe that the 'homemade bong'" was evidence of a crime. Id. (emphasis added).
Courts in other jurisdictions have likewise found that the discovery of drug residue on the defendant's person or on a narcotics pipe found in the defendant's possession provided probable cause to arrest the suspect for possession of a controlled substance. See State v. Rose, 282 P.3d 1087, 1093 (Wash. 2012) (en banc) (finding probable cause for a warrantless arrest "for possession of a controlled substance" when the officer "had a plain view of a glass pipe, with a white residue inside, that in his training and experience he suspected were consistent with drug possession"); People v. Edwards, 925 N.E.2d 576, 577 (N.Y. 2010) ("Because drug residue was first seen [on the defendant's hand] while the police had a justifiable basis to continue the detention for the traffic infraction, that observation provided probable cause to arrest and search defendant."); Bright v. State, 455 S.E.2d 37, 52 (Ga. 1995) ("The officer's subsequent observation of a crack pipe and of crack cocaine residue on the pipe was probable cause for the arrest for possession of a controlled substance.").
In short, since Spears had probable cause to arrest Camann for possession of narcotics, "the subsequent search" of Camann "was a lawful search incident to arrest under the Fourth Amendment." Perry v. Commonwealth, 280 Va. 572, 582 (2010). The trial court thus committed no error in denying Camann's motion to suppress the evidence.
B. The evidence did not support the etizolam conviction (Assignment of Error 2).
Camann also assigns error to the trial court's refusal to grant his motion to strike the Commonwealth's evidence on the etizolam charge. He argues that, for a defendant to be convicted of two felonies for possessing a single mixture containing two different controlled substances, the Commonwealth must prove that the defendant knew that the mixture contained more than one controlled substance. We agree.
1. Code § 18.2-250 requires knowing possession for each count charged.
Mens rea means "[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime." Mens Rea, Black's Law Dictionary (11th ed. 2019). The term is often used interchangeably with "scienter." E.g., Esteban v. Commonwealth, 266 Va. 605, 606-07 (2003); Maye v. Commonwealth, 213 Va. 48, 49 (1972) (per curiam).
In interpreting the mens rea element required to convict for drug possession under Code § 18.2-250, we do not write on a clean slate. We held in Sierra "that the plain language of Code § 18.2-250 requires a defendant to know that the substance he possesses is in fact a controlled substance, but that it does not require him to know precisely what controlled substance it is." 59 Va. App. at 775. Thus, if a person thinks he has heroin, but it turns out to be fentanyl, that person has still "knowingly or intentionally . . . possess[ed] a controlled substance." Code § 18.2-250; Sierra, 59 Va.App. at 783-84 ("A claim by a defendant that he knew he was possessing a controlled substance, but was unaware or mistaken as to the precise identity of that substance, is not a defense under Code § 18.2-250.").
We have also held that a defendant who possesses multiple caches of the same controlled substance can be convicted of only one violation of Code § 18.2-248, which prohibits possession with intent to distribute, unless the Commonwealth can prove "separate intents" respecting each cache. Lane v. Commonwealth, 51 Va.App. 565, 580-81 (2008). We based that conclusion on the Double Jeopardy Clause of the Fifth Amendment, which "protects against multiple punishments for the same offense." Id. at 576 (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)).
To date, however, neither our Supreme Court nor this Court has addressed in a published decision whether two violations of Code § 18.2-250 can be sustained when a defendant possesses two different controlled substances so mixed or fused together as to make them indivisible. Courts in other jurisdictions have divided on whether only a single prosecution is permitted in those circumstances. But Camann did not argue that he could be convicted of only a single felony for possessing the mixture of fentanyl and etizolam. He argues instead that the prosecution failed to prove that he had the mens rea to support the second conviction. We therefore assume without deciding that two prosecutions are permissible for possessing a single mixture, provided the mens rea requirement is satisfied.
We address below our unpublished decision in Howard v. Commonwealth, No. 078017-1, 2018 WL 2604993 (Va. Ct. App. June 5, 2018).
Compare State v. Morgan, 140 N.E.3d 171, 178 (Ohio Ct. App. 2019) ("Clearly, if an individual has a baggie of, for example, heroin, in his left pocket and a baggie of fentanyl in his right pocket, he could be convicted and sentenced for each substance. We see no reason why an individual who chooses to engage in the sale or use of Schedule I controlled substances should escape responsibility for both Schedule I controlled substances simply by mixing one substance into the other."), with State v. Owens, 579 A.2d 766, 768 (Md. 1990) ("Taking a common sense view of the matter, we are simply not persuaded that the legislature intended separate prosecutions and punishments for possession of PCP and possession of marihuana where the two substances have been, for all practical purposes, irrevocably joined as one.").
The inquiry then becomes whether the prosecution, to obtain two convictions under Code § 18.2-250, must prove that the defendant knew that a single mixture in his possession contained two controlled substances. We conclude that the statute indeed places that burden on the prosecution and that the prosecution failed to shoulder its burden here. Our conclusion is supported by the text of Code § 18.2-250, our Supreme Court's rejection of a constructive knowledge requirement for possession, the history of this code section, and the general presumption that serious offenses require guilty knowledge. a) The text of Code § 18.2-250
We begin with the text of the statute. "Questions of statutory interpretation . . . are subject to de novo review on appeal, and we owe no deference to the circuit court's interpretation of the statutory scheme." Esposito v. Va. State Police, 74 Va.App. 130, 133 (2022). "When construing a statute, [the Court's] primary objective 'is to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Va. Elec. &Power Co. v. State Corp. Comm'n, 295 Va. 256, 262-63 (2018) (quoting Cuccinelli v. Rector &Visitors of the Univ. of Va., 283 Va. 420, 425 (2012)). "We must determine the legislative intent by what the statute says and not by what we think it should have said." Miller &Rhoads Bldg., L.L.C. v. City of Richmond, 292 Va. 537, 541-42 (2016) (quoting Carter v. Nelms, 204 Va. 338, 346 (1963)).
The statutory text here strongly suggests that proof of mens rea is required to convict a defendant under each indictment that alleges illegal possession of a Schedule I or II controlled substance:
A. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription .... ....
(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony ....
Code § 18.2-250 (emphases added). This language establishes a clear mens rea requirement, as it criminalizes only knowing or intentional possession. Nothing in the text supports the notion that as long as the defendant knows that he possesses one controlled substance, he can be convicted of as many felonies as the number of controlled substances found in the mixture.
We disagree with the Commonwealth's contrary view that if a defendant knowingly possesses "at least one controlled substance, . . . that knowledge is sufficient to convict him of possession of" every other controlled substance that may be identified through laboratory analysis. The Commonwealth's reading is not supported by the phrase "any controlled substance" in subpart (a), which provides that a "person who violates this section with respect to any controlled substance" is guilty of a Class 5 felony if the substance is listed on Schedule I or II. Code § 18.2-250(A)(a) (emphasis added). Quite simply, a defendant has not violated Code § 18.2-250 unless he does so "knowingly or intentionally." Code § 18.2-250(A). Nothing in the word "any" justifies decoupling the mens rea from the actus reus required for each conviction for possessing a controlled substance.
Even if the phrase "any controlled substance" supported the Attorney General's strict-liability reading, it would at best render the statutory text ambiguous given the requirement in Code § 18.2-250(A) that a person "knowingly or intentionally" possess a controlled substance. Such ambiguity would call for applying the rule of lenity, thus construing the statute "strictly against the state and favorably to the liberty of the citizen." Morgan v. Commonwealth, Va., (Dec. 29, 2022) (quoting Sutherland v. Commonwealth, 109 Va. 834, 835 (1909)). As the discussion below confirms, applying the rule of lenity here would not "conflict with the implied or express intent" of the General Assembly and would not create "an overly 'restrictive interpretation of the statute.'" Id. (first quoting Kohl's Dep't Stores, Inc. v. Va. Dep't of Tax'n, 295 Va. 177, 188 n.8 (2018); and then quoting McGinnis v. Commonwealth, 296 Va. 489, 504 (2018)).
b) The insufficiency of presumed knowledge
The Commonwealth's position would also revive a theory of constructive knowledge of drug possession that has been roundly rejected by the Supreme Court. More than 30 years ago, our Court held in Josephs v. Commonwealth, 10 Va.App. 87 (1990) (en banc), that "[p]ossession of a controlled drug gives rise to an inference of the defendant's knowledge of its character." Id. at 101. But the Supreme Court overruled Josephs and rejected that presumption in Young v. Commonwealth, 275 Va. 587 (2008). Young made clear that "[a]ctual or constructive possession alone is not sufficient. 'The Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character.'" Id. at 591 (citation omitted) (quoting Burton v. Commonwealth, 215 Va. 711, 713 (1975)). The Court called that knowledge "an essential element of the crime." Id. (emphasis added).
By permitting multiple convictions for possession while treating as irrelevant whether the defendant knowingly possessed more than one controlled substance, the Attorney General would eliminate knowledge as an essential element of the additional counts charged. The Commonwealth conceded at oral argument that, under its reading of the statute, a defendant who thought he possessed just one controlled substance could be convicted of 15 felonies if chemical testing revealed the mixture contained 15 substances listed on Schedules I or II. Given that more than 400 controlled substances combined appear on those schedules, see Code §§ 54.1-3446, 54.1-3448, it takes little imagination to envision double-digit felony indictments-each carrying a maximum punishment of ten years in prison, Code § 18.2-10(e)-against a defendant who thought he possessed just one illegal drug. The Commonwealth's position creates a strict-liability regime for extra felony counts that cannot be reconciled with Young.
c) The history of Virginia's possession statute
The history of Virginia's possession statute further corroborates our conclusion that a conviction for possession under Code § 18.2-250 must be supported by proof of knowing possession.
"[D]rug possession was never a common law crime," State v. Sitton, No. 45088-7-II, 2015 WL 161299, *4 (Wash.Ct.App. Jan. 13, 2015), and Virginia did not criminalize the possession of illicit drugs until the twentieth century. In 1908, Virginia criminalized the distribution of cocaine without a prescription, treating cocaine possession as "prima facie evidence of an intent to sell, give away or otherwise dispense the same." 1908 Va. Acts ch. 255, §§ 1, 2 (codified at 1 Code of 1919, §§ 1696-97). The Supreme Court of Virginia interpreted that provision to require knowing possession, quoting a popular treatise for the proposition that a defendant "can only be required to account for the possession of things which he actually and knowingly possessed." Henderson v. Commonwealth, 130 Va. 761, 766-77 (1921) (quoting 3 Simon Greenleaf, A Treatise on the Law of Evidence § 33 (16th ed. 1899)).
In 1932, the National Conference of Commissioners on Uniform Laws ("National Conference") proposed the Uniform Narcotic Drug Act, see Richard L. Braun, Uniform Controlled Substances Act of 1990, 13 Campbell L. Rev. 365, 365 (1991), which was "universally adopted by the states," Ritter v. Commonwealth, 210 Va. 732, 742 (1970). Virginia adopted it in 1934. See 1934 Va. Acts ch. 86; Code of 1942, §§ 1654(1) to 1654(25); Code of 1950, §§ 54-487 to 54-519.
Section 2 of the Act made it "unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this act." 1934 Va. Acts ch. 86, § 2; Code of 1942, § 1654(2); Code of 1950, § 54-488. Noticeably absent from the text was any requirement that a person knowingly possess a narcotic drug.
The Act defined "narcotic drug" as "coca leaves and opium, and every substance not chemically distinguishable from them." Code of 1942, § 1654(1), (13). The General Assembly later expanded the definition to include "cannabis." 1952 Va. Acts ch. 451 (amending then-Code § 54-487); Johnson v. Commonwealth, 211 Va. 815, 819-20 (1971).
By 1963, however, most courts to consider the question had agreed that scienter was required, despite that "[k]nowledge of the alleged possessor, or his intention to possess, is not mentioned by the language of § 2." B. Finberg, What constitutes "possession" of a narcotic drug proscribed by § 2 of the Uniform Narcotic Drug Act, 91 A.L.R.2d 810, 821 (1963). In 1970, our Supreme Court joined that consensus, holding that scienter was needed to prove a violation:
In order to convict a defendant of "possession" of a narcotic drug, within the meaning of Virginia's Uniform Narcotic Drug Act, it generally is necessary to show that defendant was
aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.Ritter, 210 Va. at 741; see Sierra, 59 Va.App. at 782 n.8 (tracing the scienter standard adopted in Ritter to the 1963 A.L.R. annotation).
Also in 1970, the National Conference promulgated a new uniform law, the Uniform Controlled Substances Act, to replace the Uniform Narcotic Drug Act. See Braun, supra, at 365. The new uniform law was also quickly adopted by most States. Id. Virginia called its version of the law the "Drug Control Act." See 1970 Va. Acts ch. 650. The Drug Control Act criminalized the possession of any "controlled drug," id. (§ 54-524.101(c)), defined as "a drug or substance in Schedules I through V" of the act, id. (§ 54-524.2(b)(6)).
The 1970 Act codified the scienter requirement that Ritter had found implicit under the 1934 law: "It is unlawful for any person knowingly or intentionally to possess a controlled drug unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner ...." Code § 54-524.101(c) (emphasis added). Other than changing "controlled drug" to "controlled substance," the text of the current statute-Code § 18.2-250-is virtually identical to the 1970 version. And despite many amendments over the years to the Drug Control Act, the General Assembly has never altered the knowing-possession requirement.
In sum, the Supreme Court of Virginia required proof of scienter long before the predecessors to Code § 18.2-250 specified a mens rea requirement, and the General Assembly made clear that the Drug Control Act requires knowing possession. That legislative history undermines the Commonwealth's suggestion that a defendant may be convicted of felony possession for every controlled substance that happens to be found in a mixture in his possession, without proof that the defendant was "intentionally and consciously in possession," Ritter, 210 Va. at 741, of more than one controlled substance.
d) The presumption of mens rea for serious offenses
The Commonwealth's position also strays from what Justice Scalia and Professor Garner called the "Mens Rea Canon":
A statute creating a criminal offense whose elements are similar to those of a common-law crime will be presumed to require a culpable state of mind (mens rea) in its commission. All statutory offenses imposing substantial punishment will be presumed to require at least awareness of committing the act.
Antonin Scalia &Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 303 (2012).
To be sure, the Supreme Court of Virginia has not yet explicitly adopted the mens rea presumption for serious statutory crimes.
But Ritter implicitly did so As noted above, the Uniform Narcotic Drug Act created a serious statutory offense, unknown at common law, without specifying any mens rea requirement Still, Ritter concluded that the statute required proof of knowing possession 210 Va at 741 Likewise, in Maye, the Court inferred a scienter requirement in the larceny-after-bailment statute, finding that "the legislature implicitly intended that [scienter] must be proved" 213 Va at 49 In Esteban, by contrast, the Court held that felony possession of a firearm on school grounds was a "strict liability" offense when the statute contained no explicit knowledge requirement and the Court could discern no intent by the legislature to impose one 266 Va at 608-10 See generally Clayton v Commonwealth, 75 Va.App. 416, 429-31 (2022) (Raphael, J, concurring) (describing the tension between Esteban and the mens rea presumption).
For serious offenses that were not crimes at common law, courts in most American jurisdictions, including the Supreme Court of the United States, have recognized a mens rea presumption. Id. at 425-30 &nn.5-6 (collecting authorities). As Justice Jackson put it in Morissette v. United States, 342 U.S. 246 (1952), mens rea is not some "provincial or transient notion" but is "as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Id. at 250. Applying a mens rea presumption for offenses imposing serious punishment reflects "the common-sense intuition that people should not be subject to lengthy prison terms for conduct that they did not know was wrongful." Clayton, 75 Va.App. at 433 (Raphael, J., concurring).
We find the mens rea presumption appropriate here too. Given the legacy of Ritter and the General Assembly's explicit inclusion of a knowledge requirement in Code § 18.2-250, this is an easy case for recognizing it.
e) Howard
Finally, we decline the Commonwealth's invitation to resolve this case based on Howard v. Commonwealth, No. 0780-17-1, 2018 WL 2604993 (Va. Ct. App. June 5, 2018). Howard upheld two convictions under Code § 18.2-250 for the defendant's possession of a single powdery substance determined by chemical testing to contain two Schedule I or II substances, heroin and fentanyl. Slip op. at 2, 14, 2018 WL 2604993, at *1, *7. The defendant in Howard argued that if the Commonwealth could not prove that he intended to possess more than one controlled substance in the mixture, then "both of his convictions must be reversed." Id. at 1, 2018 WL 2604993, at *1. The Court rejected that claim, under which "the more drugs the capsule contained that appellant has in his possession, the more this Court is required to reverse each of appellant's convictions." Id. at 9, 2018 WL 2604993, at *4. We agree that the defendant's theory in Howard was misguided.
Citation of an unpublished opinion is "permitted as informative, but will not be received as binding authority." Rule 5A:1(f).
But "[r]equiring a mens rea showing for each count of possession does not make the first count of possession any harder to prove, only the subsequent counts." Joshua P. Stock, A Tale of Two Counts of Possession . . . For One Pill: A Reexamination of the Virginia Court of Appeals's Decision in Howard v. Commonwealth, 30 Geo. Mason U. Civ. Rts. L.J. 205, 229 (2020). Howard failed to grapple with the problem that not requiring proof that the defendant knowingly possessed more than one controlled substance creates a strict-liability crime for every additional substance that may be found in the mixture.
Still, proving that a defendant knowingly possessed a mixture containing more than one controlled substance would not be the impossible burden suggested in Judge Athey's dissent. For example, where a defendant knowingly possessed a drug by its street name, the prosecution might present testimony that the street name is commonly understood to refer to a combination of controlled substances, such as speedball, a "mixture of cocaine and heroin." United States v. Paulino, 13 F.3d 20, 22 (1st Cir. 1994). See generally Drug Enforcement Agency, Slang Terms and Code Words: A Reference for Law Enforcement Personnel (July 2018), https://www.dea.gov/sites/default/files/2018-07/DIR-022-18.pdf.
The two out-of-state authorities on which Howard relied are also not persuasive. See Howard, slip op. at 11-12, 2018 WL 2604993, at *6-7 (discussing State v. Hall, 692 S.E.2d 446 (N.C. Ct. App. 2010), and State v. Woodard, No. CA2016-09-084, 2017 WL 3128807 (Ohio Ct. App. July 24, 2017)). Hall did not address the mens rea requirement for proving multiple counts arising from of possession of a single mixture. And the majority in Woodard appeared to assume the need to prove knowing possession of a mixture containing two controlled substances (heroin and fentanyl) but split with the dissent over whether the prosecution had successfully proven such knowledge. Compare Woodard, 2007 WL 3128807, at *6 n.2 ("Here, a jury found that appellant knowingly possessed two separate controlled substances ...."), with id., at *8 (Ringland, J., dissenting) ("I have reservations about allowing two convictions under these circumstances where there is absolutely no evidence, either directly or circumstantially, that appellant knew the bag contained two separate opioid drugs.").
We are not persuaded by Howard's policy rationale that imposing criminal liability in this situation is justified by "the General Assembly's considerable efforts to combat the problem of illegal drugs." Slip op. at 5, 2018 WL 2604993, at *3. Combatting illegal drug possession is unquestionably important. But that is not the only value at stake. As shown above, the history of Code § 18.2-250 and its predecessors shows the critical importance of knowledge as "an essential element of the crime." Young, 275 Va. at 591. We should not abrogate that protection unless the statute makes it unmistakably clear that the General Assembly intends to create a strict-liability offense.
2. The Commonwealth failed to prove scienter for the second controlled substance found in the mixture.
The prosecution failed here to exclude the reasonable hypothesis of innocence that Camann knowingly possessed only one controlled substance-fentanyl-and did not know that the substance was a mixture that contained a second controlled substance. The prosecution had the burden to prove Camann's knowing possession for each count charged. But the prosecution presented no evidence during its case-in-chief to show that Camann knew that there was more than one controlled substance in the white powder found in his wallet. The evidence did not get better for the Commonwealth on the etizolam charge after the defense's case. While Camann admitted that the white powder was his and that he was a drug addict, he testified that he believed that the powder was fentanyl; he had "no idea" that it also contained etizolam, a substance he had "never heard of" before.
Camann was not the only one unfamiliar with etizolam. The prosecutor, the sheriff's deputy, the defense lawyer, and the trial judge all said at different points during the trial that they could not pronounce the name of the drug. The prosecutor called it "the E-drug" for short.
The failure of proof here is like that in Young. The defendant there was found with a prescription-pill bottle in her purse that contained a tablet that chemical testing revealed to be morphine. 275 Va. at 589. A witness testified that the pill bottle was hers, that she had inadvertently left it behind in the car driven by the defendant, and that the defendant had called to say that she had found the bottle. Id. at 590. The Supreme Court held that the evidence could not exclude the reasonable hypothesis of innocence that the defendant did not know of the character of the contents of the pill bottle that turned out to be morphine. Id. at 592. The Court observed that the officer "could not determine their nature without submitting them for laboratory analysis, and there is no reason to infer that the defendant was any better informed." Id. "The ambiguous circumstantial evidence concerning the appearance of the bottle and its contents is as consistent with a hypothesis of innocence as it is with that of guilt." Id.
The same is true here. The prosecution failed to exclude the reasonable hypothesis of innocence that Camann believed that the white powder contained only one controlled substance-fentanyl. The record lacks evidence to support a finding beyond a reasonable doubt that Camann knew that the white powder was a mixture that contained a second controlled substance as well.
CONCLUSION
We affirm the trial court's decision denying Camann's motion to suppress the evidence, but we reverse Camann's conviction (CR21-215) for possession of a Schedule I or II controlled substance (etizolam).
Affirmed in part, reversed and final judgment in part.
Athey, J., concurring in part and dissenting in part.
I agree with the majority that the trial court correctly denied Camann's suppression motion. I also concur with the majority in affirming his conviction for possessing fentanyl. But I disagree with the majority that, to satisfy the mens rea requirement for two separate convictions under Code § 18.2-250, the Commonwealth needed to prove Camann knew he possessed two separate controlled substances. I therefore respectfully dissent from the majority's decision to reverse Camann's conviction for possessing etizolam. Instead, I would have also affirmed Camann's conviction for possession of etizolam under Code § 18.2-250 since the Commonwealth sufficiently established the requisite mens rea in support of both convictions by proving Camann knowingly possessed a controlled substance.
"[T]he plain language of Code § 18.2-250 requires a defendant to know that the substance he possesses is in fact a controlled substance, but . . . it does not require him to know precisely what controlled substance it is." Sierra v. Commonwealth, 59 Va.App. 770, 775 (2012). As we have stated, the mens rea requirement in Code § 18.2-250 only applies to subsection (A). Id. at 778 ("[T]he General Assembly chose to specify a requisite degree of mens rea only in the general proscription against possessing controlled substances in the first paragraph of subsection (A)."). "Nowhere, however, in subparts (a)-(c) did the General Assembly insert a mens rea requirement." Id. at 777-78. Instead, subparts (a)-(c) focus on the defendant's actus reus and the specific type (or in this case, types) of substance(s) found in the defendant's possession. Id. at 778 ("The specific type of substance found in a defendant's possession is an actus reus element the Commonwealth must prove pursuant to subparts (a)-(c) of Code § 18.2-250(A), but it is not an element to which the mens rea requirement found earlier in Code § 18.2-250(A) applies.").
"[T]he General Assembly has chosen not to excuse a defendant who knows he is possessing a controlled substance, but is unaware or perhaps mistaken as to the precise identity of the specific substance he is possessing ...." Id. at 779. The legislature has decided that if a defendant knows that the substance he possesses is controlled, he bears the risk of incurring whatever punishment is prescribed for possessing everything in that specific substance. Id. ("A defendant who intentionally possesses a controlled substance, aware of its nature and character as such, bears the risk of incurring whatever punishment the General Assembly has prescribed for the possession of the specific substance he has. This is the policy the legislature has embraced, and we will not substitute our own policy for that of the legislature.").
Accordingly, I take issue with the majority requiring the Commonwealth to prove Camann knew the precise number of controlled substances in the mixture he possessed in order to be convicted of a corresponding number of counts under Code § 18.2-250. "[T]he plain language of Code § 18.2-250 indicates the legislature's intent to criminalize the knowing and intentional possession of 'a controlled substance,' whatever that controlled substance may turn out to be." Id. at 778. Here, what Camann possessed turned out to contain two separate controlled drugs: fentanyl and etizolam. While Camann did need to know that he possessed a controlled substance to be convicted, he "[did] not need to know the exact nature of the substance in his possession, only that it was a controlled substance of some kind." Id. at 781 (emphasis added) (quoting United States v. Martin, 274 F.3d 1208, 1210 (8th Cir. 2001)).
Although the majority argues it is only requiring Camann to know how many controlled substances he possessed, not which controlled substances he possessed, based on the majority's interpretation of Code § 18.2-250, this seems a distinction without a difference. From a practical standpoint, I doubt whether the Commonwealth could prove a defendant knew how many controlled substances he possessed without also proving the defendant knew which controlled substances he possessed.
Additionally, as the majority aptly states, under Sierra, "if a person thinks he has heroin, but it turns out to be fentanyl, that person has still 'knowingly or intentionally . . . possess[ed] a controlled substance.'" Code § 18.2-250; Sierra, 59 Va.App. at 783-84. But the majority seemingly argues that Sierra should apply with less force when a defendant thinks he possesses heroin, but actually possesses a mixture containing heroin and fentanyl. In that case, the defendant, like Sierra, would still know he possessed a controlled substance and would still be mistaken as to the precise controlled drug or drugs making up the controlled substance. Thus, consistent with Sierra, the defendant's mistake as to the specific controlled substances in the mixture cannot be a defense under the plain meaning of Code § 18.2-250. Sierra, 59 Va.App. at 783-84 ("A claim by a defendant that he knew he was possessing a controlled substance, but was unaware or mistaken as to the precise identity of that substance, is not a defense under Code § 18.2-250.").
While I appreciate the majority's concern regarding some of the potentially harsh outcomes that could result from interpreting the statute based on its plain meaning as supported by Sierra, such fears seem to arise from the potential policy implications, not legal interpretation. See Daily Press, LLC v. Off. of Exec. Sec'y of Sup. Ct., 293 Va. 551, 557 (2017) ("Public policy questions concerning where to draw the line . . . fall within the purview of the General Assembly. In a regime of separated powers that assigns to the legislature the responsibility for charting public policy, our function is limited to adjudicating . . . question[s] of law ...."). Our "drug statutes require specific knowledge or intent as to a general category of unlawful items. The specific unlawful items, however, are found in the penalty section of the scheme." Sierra, 59 Va.App. at 781 (emphasis added) (quoting United States v. Barbosa, 271 F.3d 438, 458 (3d Cir. 2001)) (explaining how the reasoning behind 21 U.S.C. § 841 "applies with equal force to Code § 18.2-250"). Thus, we cannot "arbitrarily add specific mens rea requirements to elements of an offense where the General Assembly has expressly prescribed what mens rea requirements it wishes to impose." Id. at 778. "Such public policy arguments cannot contravene clear statutory language and should be addressed to the legislature, not the courts." Hartford Underwriters Ins. Co. v. Allstate Ins. Co., __ Va. __, __ (Dec. 8, 2022).
Since I would have affirmed Camann's convictions for possession of both fentanyl and etizolam pursuant to Code § 18.2-250, I respectfully dissent.
Chaney, J., concurring in part and dissenting part.
I concur with the majority's holding that the evidence is insufficient to prove that Camann knowingly or intentionally possessed both fentanyl and etizolam in violation of Code § 18.2-250 because the evidence fails to prove that Camann knew that the white powder in his possession contained more than a single controlled substance. I dissent, however, from the majority's opinion affirming the trial court's denial of Camann's suppression motion because I conclude that the deputies obtained the drugs in violation of Camann's constitutional rights against unreasonable searches and seizures. See U.S. Const. amend. IV.
I. NO REASONABLE SUSPICION FOR THE INVESTIGATIVE SEIZURE
Deputy Spears and Deputy Russell observed Camann outside the 7-Eleven convenience store when they arrived to investigate a public-indecency complaint. Deputy Spears initially conversed with Camann during a consensual encounter while Deputy Russell investigated inside the store. Camann's police encounter was no longer consensual when Deputy Spears directed him to move his left foot so the deputy could inspect a piece of foil next to and partially under Camann's shoe. As the majority recognizes, Camann was seized when he submitted to the deputy's authority and lifted his foot. See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (recognizing that a seizure has occurred "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen"); Cochran v. Commonwealth, 258 Va. 604, 608 (1999) (recognizing that a seizure occurs when a person submits to an officer's show of authority).
Contrary to the majority's opinion, Deputy Spears's seizure of Camann was not a lawful investigative detention. Under Terry and its progeny, a police officer may lawfully detain a person to make reasonable inquiries when the officer has reasonable, articulable suspicion to believe that the person is engaged in criminal activity. See Terry, 392 U.S. at 21-22. "Whether an officer has a reasonable suspicion to justify . . . a detention is 'based on an assessment of the totality of the circumstances.'" Hill v. Commonwealth, 68 Va.App. 610, 619 (2018) (alteration in original) (quoting Branham v. Commonwealth, 283 Va. 273, 280 (2012)). "When examining the officer's articulable reasons for stopping a person, we examine the objective reasonableness of the officer's behavior rather [than] the officer's subjective belief that the conduct indicates criminal activity." Riley v. Commonwealth, 13 Va.App. 494, 496-97 (1992) (citing Terry, 392 U.S. at 21-22).
The totality of the circumstances at the time of the seizure did not give rise to reasonable, articulable suspicion that Camann was engaged in criminal drug activity. Although the police were called to investigate a complaint about alleged indecent conduct outside the store, there was no complaint of criminal drug activity. There is no evidence that the store was in an area known for drug activity. Neither deputy saw Camann engaged in any drug activity when they observed him standing by the store. Neither deputy saw Camann with any drugs or drug paraphernalia. Neither deputy observed any indicia that Camann was under the influence of drugs when they conversed with him. After noticing a piece of foil next to and partially under Camann's left foot, Deputy Spears seized Camann based on (1) the deputy's training and experience that aluminum foil is commonly used to smoke narcotics and (2) the deputy's hunch that Camann was concealing drug evidence under his foot. But such an unparticularized suspicion and hunch are insufficient to justify the investigative seizure of Camann. See Terry, 392 U.S. at 27 (holding that police must have more than an unparticularized suspicion or hunch to justify an investigatory stop). Neither deputy saw Camann hold, use, or discard the foil before they noticed it under Camann's shoe. Before Deputy Spears seized Camann, neither deputy saw anything on or near the foil to indicate that the foil was drug-related. Considered objectively, the totality of the circumstances at the time Camann was seized was insufficient to give rise to reasonable, articulable suspicion that criminal drug activity was afoot. Under these circumstances, the deputy's observation of a suspected act of concealment by Camann did not legally justify the seizure. See Smith v. Commonwealth, 12 Va.App. 1100, 1104 (1991) (holding that police unlawfully seized the defendant based on suspected concealment of drugs when the defendant "quickly move[d] to put his hand into his pants when the officer's marked car came into view" in an area known for significant drug activity); Riley, 13 Va.App. 494 (holding that police unlawfully seized the defendant based on suspected concealment of drugs when the defendant, in a high crime area, turned and reached toward his waistband upon seeing the officer); Goodwin v. Commonwealth, 11 Va.App. 363, 367 (1990) (holding that police unlawfully seized the defendant based on suspected concealment of a weapon when the defendant "shoved his hand in his coat pocket, apparently upon seeing the approaching patrol car"). Camann's subsequent admission that he was concealing the foil underfoot does not add to the objective facts available to the deputy at the time of the seizure and does not convert the deputy's hunch into reasonable suspicion.
The burnt residue on the foil was never identified, and none of Camann's convictions are based on the foil or its contents.
Even if, based on reliable witness reports, the deputies had reasonable suspicion to detain Camann to investigate alleged public indecency, Deputy Spears's directive that Camann move his left foot was unlawful because the directive exceeded the scope of a lawful investigative detention related to the witnesses' complaints. See Terry, 392 U.S. at 29 (holding that an investigative detention must be "reasonably related in scope to the justification for [its] initiation"). Since the deputy's inspection of the foil was not reasonably related to the investigation of alleged public indecency, the seizure of Camann to investigate the foil violated Camann's constitutional right against unreasonable seizures.
Since Deputy Spears seized Camann in violation of his Fourth Amendment rights, the evidence obtained pursuant to the unlawful seizure and subsequent arrest should have been suppressed and the convictions based on such evidence should be reversed. See Davis v. Commonwealth, 37 Va.App. 421, 435 (2002) (reversing drug conviction where police unlawfully detained defendant without reasonable, articulable suspicion that defendant was involved in criminal activity and drugs were found as a result of the unlawful seizure). Because the evidence seized from Camann should have been suppressed, there would be insufficient evidence to sustain any drug convictions on retrial. Accordingly, I would reverse the trial court's judgment denying Camann's suppression motion, vacate Camann's convictions, and dismiss the drug charges. See Whitehead v. Commonwealth, 278 Va. 300, 315-16 (2009) (citing Jackson v. Commonwealth, 267 Va. 666, 681 (2004)).
Camann's motion to suppress clearly moved the trial court to suppress all evidence obtained from the warrantless seizure and search of his person. Camann did not separately move to suppress the evidence found in his wallet and the rest of the evidence also found on his person. Camann's first assignment of error on appeal to this Court states:
The trial court erred in denying the Appellant's motion to suppress the narcotics seized from his wallet, because the police officer's search of the Defendant's person and wallet violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Sections 8 and 10 of the Virginia Constitution in that the Defendant's seizure and search of his person and wallet were not supported by probable cause.Amended Op. Br. 1-2. Although this assignment of error was inartfully drafted, it sufficed to inform the Commonwealth and this Court that Camann's appeal challenged the trial court's ruling denying his motion to suppress. Thus, this assignment of error is not reasonably read as being limited to the suppression of the evidence found in Camann's wallet.
II. NO PROBABLE CAUSE TO ARREST FOR POSSESSION OF A CONTROLLED SUBSTANCE
Assuming arguendo that the pre-arrest seizure of Camann was constitutional, I disagree with the majority's conclusion that the discovery of the full-size straw and burnt residue on the foil gave the deputies probable cause to arrest Camann for possession of a controlled substance. "'[P]robable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing . . . that the suspect has committed, is committing, or is about to commit" the crime for which he is arrested. Dodd v. Commonwealth, 50 Va.App. 301, 307 (2007) (second alteration in original) (quoting Thomas v. Commonwealth, 38 Va.App. 49, 53 (2002)). Deputy Spears immediately arrested and handcuffed Camann when the foil under Camann's foot was fully exposed, revealing a burn mark on the foil and a full-size straw. But neither Deputy Spears nor Deputy Russell testified to observing any substance on or inside the straw and neither deputy's testimony indicated the identity of the burnt residue on the foil. Under the totality of these circumstances, a reasonably cautious officer would have examined or tested the foil and straw for the presence of a controlled substance before arresting Camann. However, although Deputy Spears subsequently tested the powder found in Camann's wallet to determine whether there was probable cause to believe that the powder was a controlled substance, the deputies did not test the residue on the foil for the presence of a controlled substance.
The Virginia Department of Forensic Science has approved field tests for law-enforcement officers to use to determine whether there is probable cause to believe that a substance is a controlled substance. See Code § 19.2-188.1(A).
To lawfully arrest someone for the offense of possession of a controlled substance, "an officer must have probable cause to believe 'the defendant was aware of the presence and character of the drugs and that he intentionally and consciously possessed them.'" Dodd, 50 Va.App. at 307 (quoting Castaneda v. Commonwealth, 7 Va.App. 574, 583 (1989) (en banc)). Here, the deputies did not have probable cause to believe that a controlled substance was present on the foil or the straw, let alone probable cause to believe that Camann was aware of the presence and character of such substance. Thus, even if Deputy Spears's pre-arrest seizure of Camann was lawful, the warrantless arrest of Camann without probable cause was unlawful. Because the drugs were found on Camann when the deputies searched him incident to the unlawful arrest-in violation of his Fourth Amendment rights-the drugs found on Camann should have been suppressed. See, e.g., Jefferson v. Commonwealth, 27 Va.App. 1, 19-20 (1998) (holding that the trial court should have suppressed evidence found in a warrantless search of the defendant incident to the unlawful arrest of the defendant).
Contrary to the majority's opinion, the cases cited by the majority do not support the conclusion that the deputy's discovery of burnt residue on the foil gave the deputy probable cause to arrest Camann for possession of a controlled substance. In Carson v. Commonwealth, 12 Va.App. 497 (1991), an officer seized as contraband a one-and-a-half to two-inch straw that was in plain view on the driver's seat of a car, between the driver's legs. Id. at 499. The officer testified in Carson that from his experience in drug enforcement work, he "recognized the straw as the type 'that people use to ingest cocaine through their nose.'" Id. This Court found that "[t]he uniqueness of the straw's size distinguishes it from straws one would usually encounter for legitimate purposes." Id. at 502. Therefore, the straw in Carson is distinguishable from the full-size straw at issue here. This Court held in Carson that "[t]he distinctive character of the straw coupled with the officer's experience 'would warrant a man of reasonable caution' to believe that the straw might be useful as evidence of a crime." Id. (emphasis added). Thus, we held that the officer's seizure of the straw was lawful. This Court further held in Carson that the officer's discovery of white powder residue on the straw gave the officer probable cause to search the car from which the straw was lawfully seized-not probable cause to arrest the driver for possession of a controlled substance.
Here, in contrast with Carson, the evidence does not show that the foil and full-size straw found outside the 7-Eleven store have characteristics that distinguish them from foil and straws used for legitimate purposes. Foil can be used to cook or wrap food or to extinguish a cigarette, among myriad other legitimate purposes. Neither Deputy Spears nor Deputy Russell identified the burnt residue on the foil as a controlled substance. Despite Deputy Spears's knowledge that foil and straws are commonly used to smoke narcotics, the totality of the circumstances here did not give the deputies probable cause to believe that Camann possessed a controlled substance.
In Commonwealth v. Ramey, 19 Va.App. 300 (1994), this Court held that an officer had probable cause to seize "a homemade 'bong' used for smoking illegal drugs" that was seen in plain view protruding from a pack worn by the defendant. Id. at 301. This holding is based on "the distinctive character of the plastic bottle with foil on top and the highly unlikely event that it would have a legitimate use." Id. at 304. Ramey did not address whether the officer had probable cause to arrest the defendant for possession of a controlled substance.
The majority cites three cases from our sister states in purported support of the majority's conclusion that the discovery of burnt residue on the foil gave the deputies probable cause to arrest Camann for possession of a controlled substance. But the cited authorities do not support the majority's opinion. In State v. Rose, 282 P.3d 1087, 1093 (Wash. 2012) (en banc), the court held that the officer had probable cause to arrest the defendant for possession of a controlled substance where the officer saw chalky white residue in a glass tube protruding from the defendant's bag. Id. at 1088, 1092-93. The officer in Rose testified that based on his training, the residue was consistent with smoking of some substance. Id. at 1093. The officer also testified that in his training and experience, he suspected the glass pipe with white residue inside "were consistent with drug possession" and he suspected the residue was either methamphetamines or cocaine. Id. In contrast with the officer's testimony in Rose, the deputies who testified here did not identify the observed residue as a controlled substance. But in Rose, the officer's identification of the residue as a controlled substance was essential to the court's holding that the officer had probable cause to arrest the defendant for possession of a controlled substance. See id. at 1092-93. Therefore, Rose does not support the majority's opinion.
In People v. Edwards, 925 N.E.2d 576, 577 (N.Y. 2010), the court held that the police had probable cause to arrest the defendant based on the officer's observation of cocaine residue on the defendant's hand. As in Rose, the arresting officer in Edwards identified the observed residue as a controlled substance, distinguishing Edwards from Camann's case. Therefore, Edwards does not support the majority's opinion.
In Bright v. State, 455 S.E.2d 37, 52 (Ga. 1995), the defendant was arrested for possession of a controlled substance after the police stopped his car pursuant to a lookout and "discovered on the window ledge outside the door of the car an object which the officer recognized to be a crack pipe containing residue of crack cocaine." In addition to identifying the pipe as a distinctive crack pipe, the officer testified to his familiarity with crack cocaine residue. See id. As in Rose and Edwards, the court's holding that the police had probable cause to arrest the defendant for possession of a controlled substance was based on the officer's identification of the observed residue as a controlled substance. Therefore, like Rose and Edwards, Bright does not support the majority's opinion.
It appears that there is no authoritative caselaw supporting the majority's opinion that the discovery of unidentified burnt residue on a piece of foil is sufficient to provide probable cause to arrest a possessor of the foil with possession of a controlled substance. As explained above, the totality of the circumstances here-including the discovery of burnt residue on the foil under Camann's foot-did not provide probable cause to arrest Camann for possession of a controlled substance. Absent probable cause to arrest Camann, the deputies searched Camann and found the drugs pursuant to an unlawful arrest, in violation of Camann's Fourth Amendment rights. Therefore, the drugs should have been suppressed and Camann's drug convictions should be reversed. See Jefferson, 27 Va.App. at 19-20.
[*] Pursuant to Code § 17.1-413, this opinion is not designated for publication.