High court clarifies test for open container law

The Supreme Court of Virginia has clarified Virginia’s open container law, holding that it is unnecessary to meet all three indicators in Va. Code § 18.2-323.1(A) to justify a vehicle search.

Justice Thomas P. Mann agreed with the Court of Appeals of Virginia “that the traditional ‘totality of the circumstances’ probable cause approach prevails.”

“[P]robable cause to search a car for evidence of drinking while driving remains a totality of the circumstances analysis that may be informed by an officer’s training, experience, and everyday common sense,” Mann wrote.

In this case, the appellant had argued the legality of the search of his vehicle and that a firearm discovered during that search should have been excluded at trial.

The opinion is Durham v. Commonwealth (VLW 024-6-030).

Traffic stop

In March 2021, an officer with the Norfolk Police Department initiated a traffic stop on Nakia Durham for suspicion of driving with a suspended license.

When Durham rolled his window down, the officer “was hit with the odor of alcohol coming from inside the car,” per the opinion.

The officer spotted a Styrofoam cup with a clear amber liquid in the center cupholder. He sniffed the liquid and poured it out, believing it to be alcohol. After running an identification check on Durham, the officer spotted a “relatively full” liquor bottle in the left rear footwell.

The passengers were ordered out of the vehicle to allow a search. The officer placed the bottle in the trunk of the car.

During the search, the officer came across a Styrofoam cup with a “blue liquid which smelled of alcohol” in the cupholder closest to the driver’s seat. He poured this cup out as well.

Upon searching the center console, the officer discovered a .38 Special revolver, “loaded and still warm to the touch.” Durham denied owning the revolver and stated he was unsure who it belonged to.

Durham subsequently was detained.

Case history

Durham pleaded not guilty in circuit court to charges of possession of a firearm by a nonviolent felon, carrying a concealed weapon unlawfully, drinking while driving and driving with a suspended license. He also moved to suppress the revolver found during the search.

The officer testified that his search aimed to find “additional open containers,” but Durham argued that the open containers in plain view did not establish probable cause to search the center console.

The circuit court denied his motion, saying the “totality of the circumstances — the odor, the cup in plain view, the Hennessy bottle, and the unexplained blue liquor — made it reasonable for Officer Labat to search for the source of the blue liquor.”

A further motion to strike the evidence at the bench trial was denied. The court convicted Durham of possession of a firearm by a nonviolent felon, carrying a concealed weapon unlawfully and drinking while driving, and acquitted him of driving on a suspended license.

Durham appealed his firearm convictions to the Court of Appeals, asserting that the lower court erred in denying his motion to suppress and that the evidence was insufficient to sustain the convictions.

In a 2-1 decision, the appeals court affirmed the circuit court’s judgment. The majority held that, while the statute does not prohibit open containers, the search was still justified based on the totality of the circumstances. Evidence related to the revolver — including the proximity to Durham and his “‘furtive movements’ toward the center console” — led the appeals court to conclude that it was sufficient to convict on those charges.

The dissenting appeals court judge, citing McEachin v. Commonwealth and Commonwealth v. Branch, “cogently disagreed that Officer Labat’s search was constitutionally valid,” and noted that the three prongs in the statute “were ‘nevertheless relevant’ to establishing a ‘permissible inference’ of criminal activity.”

Durham appealed.

Court offers clarity

Va. Code § 18.2-323.1 provides three prongs establishing a “rebuttable presumption” that a driver violated the statute: if an open container is located in the passenger area of a vehicle, if the alcoholic beverage in the container is “partially removed,” and that the driver exhibits characteristics that “may be reasonably associated with the consumption of an alcoholic beverage.”

Durham argued on appeal that the officer lacked probable cause to search his vehicle; he contended the dissenting opinion was correct, as the commonwealth “never presented evidence establishing the third prong, that Durham himself showed signs of drinking alcohol.”

“But such an argument, borrowed from the reasoning of Branch and McEachin, misreads the statute and then improperly conflates the issues of probable cause for a search and the burden of proof relative to guilt and innocence,” Mann pointed out.

The justice added that “rebuttable presumptions,” as written in the code, “are not synonymous with permissible inferences: these presumptions are relevant to factfinders at trial and the government’s burden of proof, not the constitutional validity of a search by law enforcement officers in the field.… Though Code § 18.2-323.1(B)’s prongs may be good indicators that a driver has been consuming alcohol on a public highway, it is unnecessary to meet all three to justify a vehicle search.”

Rather, the search is a “totality of the circumstances analysis,” requiring courts to evaluate the entire picture “with an understanding that the ‘whole is often greater than the sum of its parts,’” Mann wrote, quoting District of Columbia v. Wesby.

“Though we empathize with the temptation to break such an amorphous examination into a digestible checklist borrowed from a statute, that task ultimately betrays the fluidity of the probable cause analysis,” Mann continued.

Here, the lower court properly found that probable cause justified the search of the vehicle as the officer made three key observations: the odor of alcohol; the amber, alcohol-smelling liquid in a Styrofoam cup; and the open liquor bottle.

“[T]he lidless cup in the front seat was more than just ‘an open container [] located within the passenger area of the motor vehicle,’ as it might be classified under Code § 18.2-323.1(B)’s prongs, and could lead an officer to a more inculpatory inference,” Mann wrote.

Once the officer was in the vehicle, he could search any area that might conceal the objects of his search, in this case additional “miniature” alcohol bottles. During this search, the officer opened the center console and found the revolver.

“Overall, these facts when taken in the light most favorable to the Commonwealth create a picture consonant with the requirements of probable cause and without offense to the Fourth Amendment,” Mann wrote.

As to the sufficiency of the evidence, Mann said Durham’s “twisting towards the center console” when the officer approached “could lead a rational trier of fact to believe that Durham concealed the revolver” before it could be seen by the officer.

“Durham’s conduct, combined with his proximity to the revolver, its ambient warmth, and Durham’s ownership of the vehicle, provides a factual foundation sturdy enough to support a finding that he constructively possessed a firearm,” Mann concluded, affirming the judgment of the Court of Appeals.