Commonwealth v. Branch
| Decision Date | 21 June 2022 |
| Docket Number | 0132-22-1 |
| Parties | COMMONWEALTH OF VIRGINIA v. BOBBY EUGENE BRANCH |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Steven C Frucci, Judge
Charles Agerter, Senior Assistant Commonwealth's Attorney (Colin D. Stolle, Commonwealth's Attorney, on briefs) for appellant.
Kelsey Bulger, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on brief), for appellee.
Present: Judges Beales, Ortiz and Lorish Argued by videoconference
Under Code § 19.2-398, the Commonwealth appeals the decision of the Circuit Court of the City of Virginia Beach to grant Bobby Branch's motion to suppress. On appeal, the Commonwealth argues that the circuit court erred in suppressing evidence obtained in a search of the vehicle Branch was driving because the officers had probable cause to search the vehicle when they found an open container of alcohol and an amount of marijuana subject to a civil penalty. Because we find that under the circumstances neither the open container nor the marijuana provided the officers with probable cause to search the vehicle, we affirm the circuit court's decision.
On the night of May 15, 2021, Virginia Beach Officers Cheng and Miraglia stopped a vehicle driving on 22nd Street in Virginia Beach for a traffic offense. The officers decided to stop the vehicle because it was traveling in front of their patrol car and crossed three lanes and solid lines without signaling.[1] The officers turned on their emergency lights, and the vehicle quickly pulled over onto the shoulder of 22nd Street.
Officer Miraglia approached the driver's side of the vehicle, and Officer Cheng approached the passenger's side. Both officers wore body cameras which captured the traffic stop. While Officer Cheng spoke with the female passenger, Puerta Skinner, Officer Miraglia spoke with the driver, appellee Bobby Branch.
Officer Cheng testified he saw "an open container of some sort of liquor" near Skinner in the passenger seat when he approached the window. He saw the cap of the bottle was screwed on but noticed the bottle had some liquid missing. Officer Cheng asked Skinner to hand him the bottle, then asked for her identification. When Skinner opened her purse and wallet to get her identification, Officer Cheng saw "a green, leafy substance inside of her wallet." He remarked on the "little bit of weed" and asked Skinner for it. Officer Cheng testified he smelled marijuana when Skinner opened her purse but did not smell marijuana before. Skinner explained that she had just bought the marijuana at the Oceanfront, it was Delta 8, and she was told it was "legal." Officer Cheng explained marijuana's decriminalized status but said, After he seized the marijuana, Officer Cheng said he still smelled marijuana, though he denied smelling any marijuana in the vehicle. He asked Skinner if there were any firearms in the vehicle, and Skinner responded no. Officer Cheng then asked Skinner to step out so that he could search the vehicle.
Meanwhile, Officer Miraglia asked Branch for his driver's license and registration. Branch did not have his driver's license, so Officer Miraglia ran an identification check after Branch told him his name, social security number, and date of birth. Officer Miraglia testified he cannot recall if he smelled any alcohol or marijuana during the stop. After Skinner exited the vehicle, Officer Cheng told Officer Miraglia "there's a little bit of weed, so just have him step out and pat him down." Branch said he was unaware of any weapons in the vehicle.
Officer Cheng then searched the vehicle and found a backpack on the floor behind the driver's seat. He unzipped the backpack. Inside, he found a handgun and more unburnt marijuana. Skinner said the bag was hers.
Branch moved to suppress the evidence obtained from the search of the vehicle. After a hearing, the circuit court found that the search based on the marijuana was illegal because the marijuana was only subject to a civil penalty. The circuit court stated the officers would not "be justified in searching the vehicle based on, quote, a little bit of weed, end quote, and a smell specifically in light of the code section [prohibiting a search based on the odor of marijuana]." Additionally, the circuit court found the open container did not provide probable cause for a search of the vehicle because the city code section did not prohibit the open container and there was no evidence that Branch had consumed alcohol while driving. The circuit court granted the motion to suppress.
The Commonwealth noted its pretrial appeal of the circuit court's order under Code § 19.2-398.
ANALYSIS[2]
When reviewing a trial court's decision to suppress evidence, "[w]e view the evidence in a light most favorable to [the defendant], the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence." Commonwealth v. Grimstead, 12 Va.App. 1066, 1067 (1991). "[F]indings of fact are entitled to a presumption of correctness unless they are plainly wrong or without evidence to support them." Commonwealth v. Peterson, 15 Va.App. 486, 487 (1992). As to the body camera footage, we owe deference to the trial court's interpretation of video evidence and review it "for the limited purpose of determining whether any rational factfinder could have viewed it as the trial court did." Meade v. Commonwealth, 74 Va.App. 796, 806 (2022). We then review de novo whether a search violates the Fourth Amendment under the factual circumstances. McGee v. Commonwealth, 25 Va.App. 193, 197 (1997) (en banc); Jones v. Commonwealth, 71 Va.App. 375, 380 (2019).
"The Fourth Amendment protects individuals against unreasonable searches and seizures." Jones, 71 Va.App. at 380; Collins v. Virginia, 138 S.Ct. 1663, 1669 (2018). Warrantless searches are per se unreasonable under the Fourth Amendment, subject to a few exceptions. Moore v. Commonwealth, 69 Va.App. 30, 36 (2018). Specifically, vehicle searches are subject to the automobile exception due to vehicles' "ready mobility." Collins, 138 S.Ct. at 1669. Under the automobile exception, the search of a vehicle without a warrant is reasonable under the Fourth Amendment if supported by probable cause that the vehicle contains evidence of criminal activity. Id. at 1670.
Probable cause to search exists "when 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Curley v. Commonwealth, 295 Va. 616, 622 (2018) (quoting Jones v. Commonwealth, 277 Va. 171, 178 (2009)). In determining whether probable cause exists, we analyze how the totality of circumstances would appear to an objectively reasonable officer. Id.
Here, there was no evidence amounting to probable cause that Branch consumed alcohol from the open container while driving. Assuming the open container contained alcohol that was at least partially removed, the Commonwealth did not establish Code § 18.2-323.1(B)'s rebuttable presumption because the officers did not testify that Branch's appearance or conduct evidenced alcohol consumption. While Branch and Skinner both appeared nervous during the stop, they were cooperative and coherent.
Beyond failing to establish the rebuttable presumption, the Commonwealth offered no other evidence giving rise to probable cause that Branch consumed alcohol while driving. Neither officer testified he smelled alcohol during the traffic stop or that Branch was in personal possession of the open container. The open container's mere proximity to Branch alone is insufficient to establish probable cause that he drank from the container while driving. See Whitehead v. Commonwealth, 278 Va. 300, 313 (2009) (); see also Code § 18.2-323.1(B) (). Because the open container alone was not illegal under Code § 18.2-323.1 and there was no evidence Branch consumed alcohol while driving, the officers did not have probable cause to search the vehicle for contraband or evidence of...
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