COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Humphreys,* Huff and Athey Argued by videoconference
BRANDON GARY HARVELL MEMORANDUM OPINION** BY v. Record No. 1859-22-1 JUDGE ROBERT J. HUMPHREYS MARCH 19, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Matthew W. Hoffman, Judge1
Charles E. Haden for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Brandon Gary Harvell entered a conditional guilty plea to one count of possession of
fentanyl. He conditioned his plea upon reserving the right to appeal the circuit court’s judgment
denying his motion to suppress. Accordingly, he now contends on appeal that the circuit court erred
by denying his motion to suppress because the officer lacked probable cause to search his vehicle.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). Doing
so requires us to “discard the evidence of the accused in conflict with that of the Commonwealth,
* Judge Humphreys prepared and the Court adopted the opinion in this case prior to the effective date of his retirement on December 31, 2023. ** This opinion is not designated for publication. See Code § 17.1-413(A). 1 The Honorable Gary A. Mills presided over the motion to suppress hearing. and regard as true all the credible evidence favorable to the Commonwealth and all fair
inferences to be drawn therefrom.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting
Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
During the early morning hours on November 23, 2020, Newport News Police Officer
Goodnight responded to a report of “an unresponsive individual” in a black BMW parked at a
7-Eleven. There, Officer Goodnight found Harvell “passed out” in the BMW’s driver’s seat.
Officer Goodnight knocked on the window and Harvell awoke; he was “a little groggy but
responsive.” While speaking with Harvell, Officer Goodnight noticed what appeared to be a bag of
marijuana in the vehicle’s open center console. It was “a small amount” of marijuana—“[p]robably
three or four grams,” Officer Goodnight estimated.2 He ordered Harvell out of the vehicle and
searched the vehicle. He found a bag containing suspected cocaine in a compartment beneath the
radio and multiple pill jars not prescribed to Harvell. Testing confirmed that the bag containing
suspected cocaine actually contained fentanyl.
Harvell made a motion to suppress the evidence found in the search of his vehicle. At the
hearing on the motion, Officer Goodnight explained that based on the presence of the marijuana and
the fact that Harvell was “passed out” in the driver’s side of the vehicle, he thought there might be
more marijuana, paraphernalia, or “something other than marijuana in that vehicle.” Asked if he
had any reason to believe there would be “criminal quantities of marijuana” in the vehicle, Officer
Goodnight only replied, “I couldn’t tell without checking.”
The Commonwealth conceded at the hearing that Officer Goodnight’s “search was based
upon seeing the marijuana” and explained that although Officer Goodnight thought there might be
other items in the vehicle based on Harvell’s appearance, no information showed “indicia of
intoxication” and therefore the Commonwealth did not advance Harvell’s appearance as a factor
2 Officer Goodnight testified that he did not smell the odor of marijuana. -2- supporting probable cause to search the vehicle. Harvell argued that Officer Goodnight lacked
probable cause to search the vehicle because at the time of the search the punishment for possessing
a small amount of marijuana was a “civil infraction” and not a “criminal infraction.”3
Applying the statute in effect at the time of the search, the circuit court concluded that
although the possession of a small amount of marijuana was decriminalized, it had not yet been
legalized. At the time of the search, Code § 18.2-250.1(A) (Supp. 2020) provided, “It is unlawful
for any person knowingly or intentionally to possess marijuana . . . .” Thus, any amount of
marijuana was still illegal contraband. The circuit court concluded that under the totality of the
circumstances, Officer Goodnight possessed probable cause to search Harvell’s vehicle for
contraband and denied his motion to suppress. Harvell appeals.
ANALYSIS
Harvell argues that possessing “a baggie of marijuana at that time was a civil offense and
did not provide probable cause” that he was engaged in criminal activity. “The law regarding
appellate review of a trial court’s decision on a motion to suppress is well settled. The appellant
bears the burden of establishing that reversible error occurred.” Williams v. Commonwealth, 71
Va. App. 462, 474 (2020). “[A]n appellate court must give deference to the factual findings of
the circuit court and give due weight to the inferences drawn from those factual findings;
however, the appellate court must determine independently whether the manner in which the
evidence was obtained meets the requirements of the Fourth Amendment.” Moore v.
Commonwealth, 69 Va. App. 30, 36 (2018) (alteration in original) (quoting Commonwealth v.
3 Code § 18.2-250.1 was repealed effective July 1, 2021. See 2021 Va. Acts Spec. Sess. I chs. 550-51, cl. 3. At the time of the search, Code § 18.2-250.1 provided that possession of marijuana was unlawful unless it was obtained pursuant to a valid prescription and that violation of the section was “a civil offense” and “subject to a civil penalty of no more than $25.” Code § 18.2-250.1(A) (Supp. 2020). Any violation of the section was to be “charged by summons.” Code § 18.2-250.1(B) (Supp. 2020). -3- Robertson, 275 Va. 559, 563 (2008)). “On appeal, a ‘defendant’s claim that evidence was seized
in violation of the Fourth Amendment presents a mixed question of law and fact that we review
de novo.’” Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth,
275 Va. 246, 250 (2008)).
The Fourth Amendment protects people from “unreasonable searches and seizures” by the
government. U.S. Const. amend. IV. The purpose of this Amendment “is to safeguard the privacy
and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun.
Ct. of San Francisco, 387 U.S. 523, 528 (1967). Contrary to the position taken by Harvell at oral
argument, the Fourth Amendment “applies equally to criminal and civil searches.” Skinner v. Ry.
Lab. Execs.’ Ass’n, 489 U.S. 602, 641 n.5 (1989) (Marshall, J., dissenting).
Because the individual’s interest in privacy and personal security “suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards,” it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”
New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (citations omitted).
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Humphreys,* Huff and Athey Argued by videoconference
BRANDON GARY HARVELL MEMORANDUM OPINION** BY v. Record No. 1859-22-1 JUDGE ROBERT J. HUMPHREYS MARCH 19, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Matthew W. Hoffman, Judge1
Charles E. Haden for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Brandon Gary Harvell entered a conditional guilty plea to one count of possession of
fentanyl. He conditioned his plea upon reserving the right to appeal the circuit court’s judgment
denying his motion to suppress. Accordingly, he now contends on appeal that the circuit court erred
by denying his motion to suppress because the officer lacked probable cause to search his vehicle.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). Doing
so requires us to “discard the evidence of the accused in conflict with that of the Commonwealth,
* Judge Humphreys prepared and the Court adopted the opinion in this case prior to the effective date of his retirement on December 31, 2023. ** This opinion is not designated for publication. See Code § 17.1-413(A). 1 The Honorable Gary A. Mills presided over the motion to suppress hearing. and regard as true all the credible evidence favorable to the Commonwealth and all fair
inferences to be drawn therefrom.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting
Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
During the early morning hours on November 23, 2020, Newport News Police Officer
Goodnight responded to a report of “an unresponsive individual” in a black BMW parked at a
7-Eleven. There, Officer Goodnight found Harvell “passed out” in the BMW’s driver’s seat.
Officer Goodnight knocked on the window and Harvell awoke; he was “a little groggy but
responsive.” While speaking with Harvell, Officer Goodnight noticed what appeared to be a bag of
marijuana in the vehicle’s open center console. It was “a small amount” of marijuana—“[p]robably
three or four grams,” Officer Goodnight estimated.2 He ordered Harvell out of the vehicle and
searched the vehicle. He found a bag containing suspected cocaine in a compartment beneath the
radio and multiple pill jars not prescribed to Harvell. Testing confirmed that the bag containing
suspected cocaine actually contained fentanyl.
Harvell made a motion to suppress the evidence found in the search of his vehicle. At the
hearing on the motion, Officer Goodnight explained that based on the presence of the marijuana and
the fact that Harvell was “passed out” in the driver’s side of the vehicle, he thought there might be
more marijuana, paraphernalia, or “something other than marijuana in that vehicle.” Asked if he
had any reason to believe there would be “criminal quantities of marijuana” in the vehicle, Officer
Goodnight only replied, “I couldn’t tell without checking.”
The Commonwealth conceded at the hearing that Officer Goodnight’s “search was based
upon seeing the marijuana” and explained that although Officer Goodnight thought there might be
other items in the vehicle based on Harvell’s appearance, no information showed “indicia of
intoxication” and therefore the Commonwealth did not advance Harvell’s appearance as a factor
2 Officer Goodnight testified that he did not smell the odor of marijuana. -2- supporting probable cause to search the vehicle. Harvell argued that Officer Goodnight lacked
probable cause to search the vehicle because at the time of the search the punishment for possessing
a small amount of marijuana was a “civil infraction” and not a “criminal infraction.”3
Applying the statute in effect at the time of the search, the circuit court concluded that
although the possession of a small amount of marijuana was decriminalized, it had not yet been
legalized. At the time of the search, Code § 18.2-250.1(A) (Supp. 2020) provided, “It is unlawful
for any person knowingly or intentionally to possess marijuana . . . .” Thus, any amount of
marijuana was still illegal contraband. The circuit court concluded that under the totality of the
circumstances, Officer Goodnight possessed probable cause to search Harvell’s vehicle for
contraband and denied his motion to suppress. Harvell appeals.
ANALYSIS
Harvell argues that possessing “a baggie of marijuana at that time was a civil offense and
did not provide probable cause” that he was engaged in criminal activity. “The law regarding
appellate review of a trial court’s decision on a motion to suppress is well settled. The appellant
bears the burden of establishing that reversible error occurred.” Williams v. Commonwealth, 71
Va. App. 462, 474 (2020). “[A]n appellate court must give deference to the factual findings of
the circuit court and give due weight to the inferences drawn from those factual findings;
however, the appellate court must determine independently whether the manner in which the
evidence was obtained meets the requirements of the Fourth Amendment.” Moore v.
Commonwealth, 69 Va. App. 30, 36 (2018) (alteration in original) (quoting Commonwealth v.
3 Code § 18.2-250.1 was repealed effective July 1, 2021. See 2021 Va. Acts Spec. Sess. I chs. 550-51, cl. 3. At the time of the search, Code § 18.2-250.1 provided that possession of marijuana was unlawful unless it was obtained pursuant to a valid prescription and that violation of the section was “a civil offense” and “subject to a civil penalty of no more than $25.” Code § 18.2-250.1(A) (Supp. 2020). Any violation of the section was to be “charged by summons.” Code § 18.2-250.1(B) (Supp. 2020). -3- Robertson, 275 Va. 559, 563 (2008)). “On appeal, a ‘defendant’s claim that evidence was seized
in violation of the Fourth Amendment presents a mixed question of law and fact that we review
de novo.’” Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth,
275 Va. 246, 250 (2008)).
The Fourth Amendment protects people from “unreasonable searches and seizures” by the
government. U.S. Const. amend. IV. The purpose of this Amendment “is to safeguard the privacy
and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun.
Ct. of San Francisco, 387 U.S. 523, 528 (1967). Contrary to the position taken by Harvell at oral
argument, the Fourth Amendment “applies equally to criminal and civil searches.” Skinner v. Ry.
Lab. Execs.’ Ass’n, 489 U.S. 602, 641 n.5 (1989) (Marshall, J., dissenting).
Because the individual’s interest in privacy and personal security “suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards,” it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”
New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (citations omitted).
A governmental search conducted without a warrant is “per se unreasonable, subject to a
few specifically established and well-delineated exceptions.” Megel v. Commonwealth, 262 Va.
531, 534 (2001) (citing Thompson v. Louisiana, 469 U.S. 17, 19-20 (1984)). The Commonwealth
has the burden of establishing that an exception to the warrant requirement applies to the facts at
hand. Id. One long-standing exception to the warrant requirement is the automobile exception.
Carroll v. United States, 267 U.S. 132 (1925). “[A] police officer may, before making an arrest and
without obtaining a search warrant, search a vehicle . . . so long as the officer has probable cause to
do so.” Curley v. Commonwealth, 295 Va. 616, 621 (2018) (citing Maryland v. Dyson, 527 U.S.
465, 466-67 (1999); United States v. Ross, 456 U.S. 798, 804-809 (1982); Carroll, 267 U.S. at 153).
-4- Probable cause exists when “there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Jones v. Commonwealth, 277 Va. 171, 178 (2009)
(quoting United States v. Grubbs, 547 U.S. 90, 95 (2006)).
To determine whether a police officer had probable cause to conduct a warrantless search of a vehicle, as occurred here, “we examine the events leading up to the [search], and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.”
Curley, 295 Va. at 622 (alteration in original) (quoting District of Columbia v. Wesby, 583 U.S.
48, 56-57 (2018)). We must consider “what the ‘totality of the facts and circumstances’ would
have ‘reasonably meant to a trained police officer.’” Id. (quoting Jones v. Commonwealth, 279
Va. 52, 59 (2010)). “This includes, of course, an officer’s ‘common-sense conclusions about
human behavior.’” Id. at 623 (quoting Wesby, 583 U.S. at 58).
Here, Officer Goodnight saw marijuana, which was at the time still illegal contraband,
inside Harvell’s vehicle. Officer Goodnight acted lawfully in seizing the marijuana which was in
plain view and immediately apparent as unlawful to possess. Horton v. California, 496 U.S.
128, 135-36, 142 (1990). However, that is not the end of the analysis. Beyond Harvell’s
possession of the small amount of marijuana, the record provides no indication, prior to the
further search of the vehicle, that it contained additional contraband or evidence of any crime.4
We are mindful in reviewing the totality of the circumstances asserted to support
probable cause, that the facts “must be seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field of law enforcement.” Byrd v.
4 Had Harvell’s possession of the marijuana justified his arrest, the officer may have conducted a limited search of the vehicle as a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 762-63 (1969) (stating it is reasonable for an arresting officer to search for and seize evidence on an arrestee’s person and from the area within his reach). However, here there was no arrest of Harvell or justification to arrest him prior to the further search of his vehicle. -5- Commonwealth, 57 Va. App. 589, 596 (2011) (en banc) (quoting Illinois v. Gates, 462 U.S. 213,
232 (1983)). “Under this standard, courts recognize that ‘a police officer may draw inferences
based on his own experience in deciding whether probable cause exists,’ including inferences
‘that might well elude an untrained person.’” Id. (first quoting Ornelas v. United States, 517
U.S. 690, 700 (1996); and then quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
Nevertheless, in this case, Officer Goodnight only testified that based solely on the presence of a
small amount of marijuana and the fact that Harvell was asleep in his vehicle, he thought he
would find more. He did not provide any basis for his reasoning that there would be contraband or
evidence of a crime elsewhere in the vehicle. He offered no testimony to support a reasonable belief
that Harvell was intoxicated with drugs, as the Commonwealth conceded below. Additionally, that
Harvell was asleep in his vehicle, without more, does not support a reasonable conclusion that he
was engaged in criminal activity. Brown v. Commonwealth, 270 Va. 414, 421 (2005) (finding lack
of probable cause to arrest where Brown was holding a hand-rolled cigarette and sleeping in his
car).
The facts of the record only support that the officer acted on a hunch and not based on
circumstances indicative of criminal activity. See Cost, 275 Va. at 254 (finding even a
well-educated hunch is insufficient to establish probable cause). Considering the totality of the
circumstances developed in this record, the officer did not have the requisite probable cause to
search Harvell’s vehicle.
For the foregoing reasons, we reverse the circuit court’s judgment and remand to the
circuit court with direction that Harvell be permitted the opportunity to withdraw his guilty plea
and to have the matter proceed to trial, if the Commonwealth is so advised.
Reversed and remanded.
-6-