Virginia Lawyers Weekly VA Lawyers Weekly
When a citizen conversing voluntarily with police gave them the unlabeled pill bottle in his pocket, he consented to inspection of both the outside and inside. The trial court erred in suppressing the contents.
Background
At around 10:30 p.m. on April 20, 2017, Richmond Police Officers H. Baer and C. Kelly were in uniform and on foot patrol in the Mosby Court area talking to people regarding a double homicide that recently had taken place. They encountered Appellee Antonio Jermaine Spencer and another individual walking on the sidewalk. The officers didn’t draw their weapons, but were carrying flashlights, which they used to illuminate Spencer, his companion, and the surrounding area.
Spencer said they didn’t live in the area and were walking back to their car to leave. Baer asked the men for their identification, and Spencer complied. During the conversation, Baer saw the white top of a prescription pill bottle in a side pocket of Spencer’s cargo pants. Baer asked Spencer if he had a prescription for the pill bottle. Spencer replied that he did not.
Baer asked to see the pill bottle, and Spencer handed the pill bottle to Baer in response. The bottle was blue and had no label. Spencer said nothing as to whether or not Baer could open the bottle. Upon receiving the bottle, Baer immediately removed the cap and found a green leafy substance inside the bottle. The substance appeared to be marijuana. Baer then patted down Spencer and found a firearm in his pants.
Spencer moved to suppress the evidence seized on grounds that the search of the pill bottle and his person were unconstitutional. The circuit court granted the motion to suppress, concluding that, although it began as a consensual encounter, the nature of the officer’s interaction with Spencer changed when they requested his identification and he complied. The Commonwealth appealed.
Timing of seizure
Spencer was not seized for Fourth Amendment purposes until after the discovery of the marijuana. The evidence establishes that two citizens were faced with two officers. No weapons were drawn by the officers, and, by all accounts, the tone of the conversation was collegial. Prior to the discovery of the marijuana, no physical restraint was used, and Baer did not issue commands to Spencer, but rather, only made requests. Although the officers illuminated Spencer with flashlights, the action was reasonable given the time of night and description of the lighting and did not connote a threat or show of force.
Contrary to the circuit court’s conclusion, Branham v. Commonwealth, 283 Va. 273 (2012) held that, standing alone, complying with an officer’s request for a license does not convert a consensual encounter into a seizure. Applying Branham here, Spencer wasn’t seized for Fourth Amendment purposes when he provided Baer with his identification card. Accordingly, the circuit court erred in concluding that Spencer was seized at any point prior to the discovery of the marijuana. As a result, the circuit court also erred in concluding that Spencer’s act of giving Baer the pill bottle was involuntary.
Consent
Spencer’s actions constituted consent for Baer to open the pill bottle. A reasonable person, viewing the circumstances considered by the circuit court, would have believed that Spencer effectively had consented to the opening of the pill bottle. A reasonable person would conclude that Baer, in asking to see the pill bottle, was suspicious that the bottle contained contraband. A reasonable person further would recognize that Spencer’s admission that he didn’t have a prescription would heighten the officer’s suspicion.
Although a request to “see” something can be interpreted as a request simply to gaze at an object, in everyday speech it is often understood as a request to be given an object to allow for inspection. Here, given the context of the conversation to that point, a reasonable person would conclude that Baer’s request to “see” the pill bottle was not a request to look at it from a distance but rather a request to have the bottle presented for observation or consideration.
Once Spencer had given Baer the bottle, the question becomes whether a reasonable person would conclude that, given the context of the encounter to that point, consent had been given for Baer to open the pill bottle. Given the questions that would have been understood to indicate that Baer was interested in the bottle because it may contain contraband, Spencer stating that he did not have a prescription for the bottle and giving no indication that he did not want Baer to open the bottle, and Spencer’s handing the bottle, which did not have a label, to Baer, a typical reasonable person would conclude that consent had been given for Baer to open the bottle.
Thus, the court finds that Spencer’s actions, in context, evidenced consent for Baer to open the pill bottle; thus, Baer’s doing so didn’t offend the Fourth Amendment. Accordingly, this court reverses the trial court’s judgment suppressing the evidence, namely the firearm that was discovered as a result of the search of Spencer’s person that followed Baer’s discovery of the marijuana in the pill bottle.
Reversed and remanded.
Dissent
(Malveaux, J.) While I concur that the defendant’s encounter with police was consensual, I respectfully dissent from the majority holding that Spencer consented to the search of the pill bottle’s contents.
The circuit court, weighing the totality of the circumstances, found that the evidence did not support finding that “inherent consent to remove the cap existed” if Spencer voluntarily gave the pill bottle to Baer. This finding is not plainly wrong, because the circuit court could reasonably infer that a reasonable person would have understood from the parties’ exchange that Spencer’s consent only extended to an examination of the bottle’s exterior. When Baer held and examined the bottle, he could see that it did not have a prescription label or any other label on it. A reasonable person under these circumstances could have understood that when Spencer gave the bottle to Baer for him to “see” it, he did so for the limited purpose of permitting Baer to verify his statement that he did not have a prescription and, if he did not, to see if the bottle had a label indicating that it contained another person’s prescription medication.
While Baer’s request to “see” the bottle was ambiguous, in our present procedural posture, the evidence and all reasonable inferences flowing from it must be viewed in the light most favorable to Spencer. Thus, Spencer’s act in giving the prescription bottle to Baer must be interpreted as a limited grant of consent for Baer to view the bottle’s exterior, and not as a broader grant of consent for Baer to open and search the bottle for contraband.
The circuit court was not plainly wrong in inferring that a reasonable person, under the facts and circumstances here, would have understood that when Spencer handed the pill bottle to Baer for him to “see the bottle,” his action did not convey consent for Baer to immediately open the bottle and inspect its contents. Because this inference was not plainly wrong, I would affirm the circuit court’s judgment.
Commonwealth v. Spencer, Record No. 1821-17-2, May 1, 2018. CAV (Russell), from Richmond City Cir. Ct. (Taylor). John I. Jones IV for Appellant; Kelsey M. Bulger for Appellee. VLW No. 018-7-110, 16 pp.
