Porter v. Commonwealth
| Decision Date | 23 May 2017 |
| Docket Number | Record No. 0631-16-1 |
| Court | Virginia Court of Appeals |
| Parties | DEREK LAMONT PORTER v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Alston, Chafin and Decker
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Bassel Khalaf, Assistant Public Defender, for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General, on brief), for appellee.
Derek Lamont Porter appeals his conviction for possessing a controlled substance with the intent to distribute in violation of Code § 18.2-248(C). He contends that his medicine bottle was searched and that the search and his subsequent detention were unreasonable under the Fourth Amendment of the Constitution of the United States. He concludes that, consequently, the circuit court should have granted his motion to suppress evidence. We hold that the circuit court did not err in denying the motion to suppress. Accordingly, we affirm the conviction.
Around 10:00 p.m. on March 20, 2014, Officer Spencer Parrish, of the Virginia Beach Police Department, was on patrol in a "high narcotic[s] area." He had participated in narcotics investigations "several" times in that area, including serving two search warrants. While on patrol that night, Parrish observed the appellant in the driver's seat of a parked car with another man in the front passenger seat.
The officer parked his marked police car on the opposite side of the street from the appellant, twenty-five or thirty feet away from him. Officer Parrish used his vehicle's spotlight to illuminate the appellant's car because it was dark in the area.2 He was alone, and his weapon remained holstered. Parrish waved at the occupants in the car "as if to say hi" as he approached the driver's door on foot. The appellant, who appeared "extremely nervous," rolled down his window.
Parrish asked to see the appellant's identification, and the appellant provided him with his driver's license. As the two conversed, the officer saw two "pill bottles" in the appellant's lap. Parrish asked to "see" the pill bottles, and the appellant handed them to him. The labels on the bottles identified prescriptions in the appellant's name. One bottle was labeled as morphine and had a sticker with the words "controlled substance." Officer Parrish noticed that the morphine label indicated that the prescription had been filled with ninety pills "seven days prior" and that there were only two pills in the bottle. The officer asked the appellant the amount of his dailydose. The appellant replied "two to three pills a day." Based on this response, Parrish calculated that the bottle should be missing only twenty-one pills, not eighty-eight.
At that point, Officer Parrish requested assistance, which arrived a few minutes later. During the interaction that followed, the appellant admitted to selling the missing morphine pills.
The appellant made a motion to suppress the evidence. In support of this motion, he argued that Officer Parrish effected a seizure when the officer approached him and that he did not consent to the conversation or the inspection of the pill bottles. The appellant further contended that once Parrish obtained the appellant's identification and the pill bottles, the officer had no reasonable articulable suspicion of criminal activity. Specifically, he suggested that when the officer discovered that the pill bottles belonged to the appellant, he should have stopped the investigation rather than searching the morphine bottle because any reasonable suspicion no longer existed.
The circuit court denied the motion. The appellant entered a conditional guilty plea, preserving his right to appeal the court's denial of his motion to suppress. The court accepted the plea, found the appellant guilty, and sentenced him to five years of imprisonment.
The appellant argues that the circuit court erred in denying his motion to suppress the evidence because Officer Parrish did not have legal justification to "search" the morphine medicine bottle or to detain him after the officer discovered that the pill bottle belonged to him.3
On appeal of the denial of a motion to suppress evidence, the appellant has the burden to show that the circuit court's ruling constituted reversible error. Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008). "'Ultimate questions of reasonable suspicion and probable cause to make a warrantless search' involve questions of both law and fact and arereviewed de novo on appeal." McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)). This Court must "independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." McCain v. Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 515 (2008). In doing so, however, the Court is "bound by the trial court's factual findings unless those findings are plainly wrong or unsupported by the evidence." Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008). In addition, "we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee, 25 Va. App. at 198, 487 S.E.2d at 261.
The appellant argues that although he consented to the officer's request to "see" the pill bottles, Officer Parrish violated his Fourth Amendment rights by searching his medicine bottle labeled morphine. The Commonwealth responds that the appellant did not argue below that Parrish exceeded the scope of the appellant's consent and, therefore, the issue is barred.
The appellant is correct that a consensual search must be limited to "the scope of the consent given." Grinton v. Commonwealth, 14 Va. App. 846, 850, 419 S.E.2d 860, 862 (1992). However, at no point during the hearing on the motion to suppress did he argue to the circuit court that Parrish's "search" of the medicine bottle exceeded the scope of his consent. Instead, the appellant argued that his encounter with Officer Parrish was not consensual because the "blinding" police spotlight constituted a show of authority, rendering the encounter a seizure. He further contended that after Officer Parrish obtained his identification and matched his name to that on the pill bottle labels, the officer no longer had reasonable suspicion of criminal activity and the detention should have ended.
Under Rule 5A:18, "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Interpreting this rule, the Court has held that "[m]aking one specific argument on an issue does not preserve a separate legal point on the same issue for review." Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc), aff'd by unpub'd order, No. 040019 (Va. Oct. 15, 2004). The purpose of Rule 5A:18 is to allow both the circuit court and the opposing party "the opportunity to intelligently address, examine, and resolve issues in the trial court" in order to avoid unnecessary appeals and retrials. See Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004), aff'd on other grounds, 269 Va. 3, 607 S.E.2d 119 (2005).
The appellant's failure to make the "scope of consent" argument relating to the pill bottle below deprived the Commonwealth of the chance to address it and the circuit court of the opportunity to rule on this issue. See Vaughn v. Commonwealth, 279 Va. 20, 21, 688 S.E.2d 283, 284 (2010) (); Redmond v. Commonwealth, 57 Va. App. 254, 259 n.2, 701 S.E.2d 81, 83 n.2 (2010) ().4 Additionally, at no point has the appellant asserted that the ends of justice exception to Rule 5A:18 applies to permit this Court to address this challenge, and we do not consider that limited exception to the rule sua sponte. See Edwards, 41 Va. App. at 761, 589 S.E.2d at 448; see also Jones v. Commonwealth, 293 Va. 29, 39 n.5, 795 S.E.2d 705, 710 n.5 (2017) (). Further, the appellant does not raise the good cause exception to Rule 5A:18, and a review of the record does not provide any reason to invoke that exception here. See Andrews v. Commonwealth, 37 Va. App. 479, 494, 559 S.E.2d 401, 409 (2002). Consequently, we conclude that Rule 5A:18 bars our consideration of this assignment of error.5
In a separate assignment of error, the appellant argues that once the officer "looked at the refill date on the bottle and looked inside," the consensual encounter, which included handing the officer the pill bottles, turned into an unlawful seizure. He contends that at that point, Officer Parrish seized him without sufficient justification when he searched inside his medicine bottle, questioned him, and requested backup.
The Fourth Amendment protects people from unreasonable searches and seizures. E.g., Jones v. Commonwealth, 279 Va. 521, 527, 690 S.E.2d 95, 99 (2010). It is well established that warrantless searches and seizures are "presumptively unreasonable." Harris v. Commonwealth, 241 Va. 146, 152, 400 S.E.2d 191, 195 (1991). Nevertheless, "courts recognize exceptions to this general rule in several circumstances, including when a party voluntarily consents to the search." Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008).
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