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Vol. 3, No. 2 | October 2008
Two Recent Virginia Supreme Court Cases on Probable Cause
by Jack E. Call
Professor of Criminal Justice
In the first half of 2008, the Virginia Supreme Court issued several significant opinions dealing with police practices. In two of those cases, a divided court dealt with issues of probable cause and ruled against the police.
In the first case, Cost v. Commonwealth,1 a police officer was patrolling the parking lot of a public housing area, looking for people who were parked there who were not residents of the property. As the officer approached the car in which Cost was sitting in the passenger seat, the officer observed that Cost “immediately reached across his body towards his left front pants pocket.” Cost did not reply when the officer asked him what he was doing. The officer asked Cost to move his hand from his pocket, but Cost persisted. As a result, the officer removed Cost from the car.
Cost told the officer “you can’t search me, but you can pat me down.” The officer immediately patted down the pocket where Cost had extended his hand, where he felt a large bulge that consisted of what he believed were capsules. Based on narcotics training classes and 50-60 arrests involving heroin capsules over a 4 1/2 year career as a police officer, the officer concluded that he had felt heroin capsules. He reached into the pocket and retrieved a plastic baggie containing twenty heroin capsules. Although the officer conceded in his testimony at trial that over-the-counter drugs (such as Tylenol and Motrin) come in capsules, he also testified that he had “never arrested anybody with Motrin in their pocket.”
The issue in the case was whether feeling the capsules in Cost’s pocket provided the officer probable cause to think Cost had contraband in his pocket. If he did not, he was not justified in reaching into Cost’s pocket to remove the baggie.
The court ruled, 5-2, that the officer did not have probable cause. The court relied heavily on its prior decision in Murphy v. Commonwealth.2 In that case, the court held that an officer did not have probable cause to think a suspect had contraband in his pocket when the officer, during a pat-down, felt a plastic baggie that he believed contained marijuana. In both Murphy and Cost, the court concluded that the sense of touch is not discriminating enough to enable an officer to conclude that what he has felt inside a suspect’s pocket is contraband, rather than some legitimate substance. There must be something else suspicious about the circumstances that can be added to what the officer has felt.
In Cost, the government argued that there was something else. It argued that Cost had attempted to conceal the drugs with his hand, failed to comply with the officer’s instruction to desist in that effort, and failed to respond to the questions the officer asked him. The Virginia Court of Appeals had ruled that these were indeed suspicious circumstances that, when added to what the officer had felt in Cost’s pants pocket, provided probable cause to think Cost had drugs in his pocket.3
The Virginia Supreme Court disagreed and addressed each of these arguments. The Court concluded that “the evidence does not show that Cost did anything by stealth or in a surreptitious manner. According to [the officer’s] testimony, [he] was readily able to observe all of Cost's actions. There is no evidence to even suggest that Cost attempted to remove the drugs from his pocket and secrete them in some other place.”
The court also indicated that it could not be concluded that Cost attempted to conceal the drugs because “they were already in his pocket.” Lastly, “Cost's failure to respond to the officer's questions is of no particular significance because Cost was under no obligation to respond to [his] questions. Moreover, Cost complied with [the] order to exit the vehicle and immediately consented to the pat-down search.”
The second recent probable cause case also dealt with the seizure of drugs from a person who was acting suspiciously. In Buhrman v. Commonwealth,4 an officer was in a convenience store when he noticed that Buhrman was having some difficulty maintaining her balance when she walked. He also observed that when she was drawing a drink from a frozen drink machine, she appeared to fall asleep momentarily. When the officer observed Buhrman walking towards a car, he became concerned that she might try to drive while intoxicated. As a result, the officer approached Buhrman and asked her for identification.
When Buhrman opened her car door to retrieve some identification, the officer noticed hand-rolled cigarettes on the inside of the door. Based on the “coloration” of the cigarettes and a “faint odor,” the officer concluded that the hand-rolled cigarettes were marijuana cigarettes and arrested her for possession of marijuana. A search incident to the arrest resulted in the discovery of cocaine, heroin, and marijuana in the car and in Buhrman’s purse.
The Virginia Supreme Court ruled, 4-3, that the officer’s observations prior to her arrest of Buhrman did not provide probable cause to think she possessed marijuana. As in Cost, the court placed great reliance upon one of its prior cases. In Brown v. Commonwealth,5 the Virginia Supreme Court ruled there was not probable cause to arrest and search a person for possession of illegal drugs when a police officer had observed the person asleep in a car, holding a hand-rolled cigarette that was partially burned. The arresting officer testified that in nineteen years of law enforcement experience, he had observed over a hundred hand-rolled cigarettes that contained a controlled substance. Nevertheless, the court indicated that probable cause may not be based "solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes." The court stated that such observations must be combined with some other suspicious circumstance in order to constitute probable cause.
As in Cost, the government pointed to other circumstances that it argued were suspicious. In this case, those circumstances were Buhrman’s apparent intoxicated state and other “suspicious actions.” The court indicated that “behaving in an intoxicated and suspicious manner is not so overwhelmingly correlated with the use of marijuana so as to exclude the reasonable inference that such behaviors are the result of the use of a legal substance such as alcohol.”
These two probable cause cases are of particular interest for a couple of reasons. First, these two cases reflect a rather high standard of probable cause. One of the great mysteries of American criminal procedure jurisprudence is just what probable cause means. At times, the courts have used language that suggests a “more likely than not” approach. For example, in Beck v. Ohio,6 the Supreme Court indicated that probable cause to arrest requires the police to possess information “sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” A strong argument can be made that a person does not “believe” something unless the person thinks it is more likely than not to be true. The word “probable” itself is typically used in every day conversation to mean more likely than not.
Of course, words are often given a meaning in law that is different from the way they are used in everyday conversation. In another case, the Court indicated that “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity."7 “Substantial chance” would appear to be a standard below that of more likely than not. What’s more, common sense, as well as the Supreme Court’s application of the probable cause standard in actual cases, suggests that the standard is less than more likely than not.
Certainly, probable cause does not (or at least should not) require a showing that the presence of contraband or evidence of a crime at a place the police would like to search is the only possible conclusion that could be drawn from the facts known to the police. For example, let’s suppose the police suspect a man of shooting and killing his ex-girlfriend. The police know that the man owns (or at least owned in the recent past) a pistol of the caliber used to kill the victim. The man has been overheard threatening the victim and has no alibi for the night of the murder.
Do the police have probable cause to search the man’s house for his pistol? Certainly it seems reasonable to permit the search, but is it more likely than not that the pistol is in the man’s home? Doesn’t it seem more likely that if this man is the killer and he used this pistol kill his former girlfriend, he would not take the pistol back to his home? If the answer to this question is yes and probable cause means more likely than not, then a search of the suspect’s home would seem to be impermissible in this situation. However, what the standard of probable cause is designed to do is to determine when the likelihood of finding something incriminating is great enough that society’s interest in permitting the police to search exceeds the suspect’s interest to be left along by the police and not have his privacy invaded. In our hypothetical, the likelihood of finding the murder weapon in the suspect’s home seems high enough to justify the intrusion by the police.
The approach taken by the Virginia Supreme Court in Cost and Buhrman seems to favor a more likely than not probable cause standard. The opinions never say that in so many words, but the explanations for the outcomes are highly consistent with this conclusion. In Buhrman (as well as Brown, the case on which the court heavily relied), the court specifically indicated that probably cause may not be based “solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes.” The court seems to be saying that since possession of material which can be used for legitimate purposes is just as consistent with innocence as is it with guilty, it may not constitute probable cause.
In Cost, the court similarly discounted the significance of Cost’s continuing to hold his hand over his pocket, even after the officer asked him to stop. In effect, the court seemed to be saying that this behavior is just as consistent with innocent behavior as it is with guilty behavior (although, again, this not what the court actually said).
The point is that if probable cause means something close to, but less than, more likely than not (something like “substantial possibility”), there will sometimes be circumstances where guilt or the presence of contraband is less likely than the opposite conclusion, but the likelihood of either is nonetheless great enough to constitute probable cause and justify an arrest or a search. The decisions in Cost and Buhrman seem inconsistent with this conclusion.
Cost and Buhrman have a second thing in common – both decisions downplay the significance of police experience. The U.S. Supreme Court has often stressed that courts should give weight to the experience of police officers in reviewing their probable cause (and reasonable suspicion) determinations. For example, in the first stop-and-frisk case, Terry v. Ohio,8 the Court indicated that “in determining whether the officer acted reasonably in [frisking a suspect], due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” A more recent reiteration of this point can be found in U.S. v. Arvizu,9 where the Court stated that the totality of circumstances approach utilized in probable cause and reasonable suspicion situations “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’"
When we discuss these cases, especially the stop-and-frisk cases, in my constitutional rights course, I often express concern about the Court’s instruction that courts give deference to the experience of officers. The concern is that courts will permit officers to refer to their experience in their testimony as if it were a kind of magic wand. The reason why courts review probable cause and reasonable suspicion determinations of the police in the first place is to make law enforcement officers aware that these determinations will often be examined later in a court of law. Awareness of this fact should have the desirable effect of making those officers more careful when deciding whether to stop, arrest, frisk, or search.
If judges are unwilling to look beyond officers’ assertions that something was suspicious to them because of their experience, the review of those decisions by the courts would become a meaningless exercise. It is my contention that judges should require officers to explain what it was about their experience that made something suspicious to them when it might not have seemed suspicious to the ordinary person.
However, in Cost and Buhrman, the officers did explain why their experience made them think what they had observed was suspicious. In Cost, the officer conceded that Tylenol and Motrin sometimes are sold in capsules, but testified that in his extensive experience in these matters, capsules found in a person’s pocket were invariably contraband, not Tylenol or Motrin. In Buhrman, the officer testified that in nineteen years of experience, he had been involved in the seizure of over a hundred hand-rolled cigarettes that contained a controlled substance. (The opinion does not indicate whether the officer testified as to how many times, if any, a hand-rolled cigarette that he seized turned out not to contain contraband. I suppose the prosecutor could wait for defense counsel to raise this question on cross-examination, but I think the prosecution would have more credibility with the judge if it elicited this information on direct examination).
Two cases may not be enough to draw the conclusion that the Virginia Supreme Court wants to downplay the significance of police experience, but that conclusion is consistent with some other recent decisions as well. In Harris v. Commonwealth,10 the court held that discovery during a pat-down of a film canister, an object that officers know from experience is commonly used to store drugs, did not provide probable cause to seize and open the canister. In Grandison v. Commonwealth,11 the court held that observation of a dollar bill folded in the distinctive “apothecary fold” that drug users often use to store powder cocaine did not provide probable cause to seize and unfold the dollar bill.
Of course, of the four probable cause opinions by the Virginia Supreme Court mentioned in this article in which a police officer’s probable cause determination was overturned, three of those decisions were 4-3 and the other one was 5-2. A different point of view by only one justice obviously could have made a significant difference in these cases. Justice Agee recently left the court for a position on the U.S. Court of Appeals for the 4th Circuit. However, he did not participate in two of the cases, he was in the majority in Cost, and he dissented in Grandison. Thus, it is not clear that his replacement is likely to make much of a difference in these kinds of cases. However, if he is replaced with a more conservative justice and another more conservative switch occurs in the near future, the court might adopt a different approach. Only time will tell.
 657 S.E.2d 505 (2008).
 570 S.E.2d 836 (2002).
 638 S.E.2d 714 (2006).
 659 S.E.2d 325 (2008).
 620 S.E.2d 760 (2005).
 379 U.S. 89 (1964).
 Illinois v. Gates, 462 U.S. 213 (1983).
 392 U.S. 1 (1968).
 534 U.S. 266 (2002).
 400 S.E.2d 191 (1991).
 645 S.E.2d 298 (2007).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.