Camann v. Commonwealth
| Decision Date | 28 February 2023 |
| Docket Number | 0243-22-4 |
| Parties | Dana Mark Camann, Jr., Appellant, v. Commonwealth of Virginia, Appellee. |
| Court | Virginia Court of Appeals |
UNPUBLISHED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
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.[1]
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.[1] 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.[2] 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.
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[3] 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.
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.[4] 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.[5] 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.
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.[6]
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
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.
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.
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.[7] 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...
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