Virginia Lawyers Weekly VA Lawyers Weekly
In a split decision, the majority holds that the trial court correctly denied appellant’s motion to suppress but reverses his conviction for possessing etizolam.
Background
“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.”
Rulings
“We reject Camann’s argument that the trial court erred in failing to grant his motion to suppress the evidence. [Footnote 1 “Judge Chaney dissents from this conclusion.”]
“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.
“We agree with Camann, however, that there was insufficient evidence to support his conviction for felony possession of etizolam. [Footnote 2 “Judge Athey dissents from this conclusion.”]
“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.”
Concurrence and dissent
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.
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.”
Camann Jr. v. Commonwealth, Record No. 0243-22-4, Feb. 28, 2023. CAV unpublished opinion (Raphael; Athey concurring in part and dissenting in part; Chaney concurring in part and dissenting in part). From the Circuit Court of Frederick County. (Eldridge IV). Jason E. Ransom for appellant. Rebecca M. Garcia, Jason S. Miyares for appellee. VLW 023-7-095, 37 pp.
