Dana Mark Camann, Jr. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 28, 2023
• Docket: 0243224
• Status: Unpublished

Opinion

VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 28th day of March, 2023.

Dana Mark Camann, Jr., Appellant,

against Record No. 0243-22-4 Circuit Court Nos. CR21000213-00 through CR21000216-00

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

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

A Copy,

Teste:

A. John Vollino, Clerk

original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court

Deputy Clerk

1 The guidelines for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf. COURT OF APPEALS OF VIRGINIA

Present: Judges Athey, Chaney and Raphael UNPUBLISHED

Argued by videoconference

DANA MARK CAMANN, JR. MEMORANDUM OPINION* BY v. Record No. 0243-22-4 JUDGE STUART A. RAPHAEL FEBRUARY 28, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FREDERICK COUNTY William W. Eldridge, IV, Judge

(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.

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.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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.

BACKGROUND

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

1 Judge Chaney dissents from this conclusion. 2 Judge Athey dissents from this conclusion. -2- 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 Miranda3 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

3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 See Code §§ 54.1-3446 (Schedule I), 54.1-3448 (Schedule II). 5 See Code § 54.1-3452 (Schedule IV). -3- 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 “You

don’t need to know whether it is heroin or fentanyl or etizolam or cocaine or anything else,

6 Judge Alexander Iden presided at the hearing on the motions to suppress. -4- amphetamines, meth. As long as you know that you are possessing something illegal you are

guilty of every one of those things . . . .”

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.

ANALYSIS

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.

A. The trial court did not err in denying the suppression motion (Assignment of Error 1).

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

7 Camann’s assignment of error relates only to the narcotics seized from Camann’s “wallet”—the fentanyl and etizolam. The assignment of error omits any reference to the pills found in the pill bottle. Accordingly, this appeal involves no challenge to Camann’s convictions for possessing amphetamine [CR21-213] and clonazepam [CR21-216]. See Rule 5A:20(c)(1) (“Only assignments of error listed in the brief will be noticed by this Court.”); Riddick v. Commonwealth, 72 Va. App. 132, 146 (2020) (stating that an appellate court “cannot ‘consider issues . . . not encompassed by [the] assignment of error’” (quoting Banks v. Commonwealth, 67 Va. App. 273, 290 (2017))). -5- only against evidence seized and information acquired during an unlawful search or seizure but

also against derivative evidence discovered because of the unlawful act.” Id. (quoting Warlick v.

Commonwealth, 215 Va. 263, 265 (1974)).

“When challenging the denial of a motion to suppress evidence on appeal, the defendant

bears the burden of establishing that reversible error occurred.” Street v. Commonwealth, 75

Va. App. 298, 303-04 (2022) (quoting Mason v. Commonwealth, 291 Va. 362, 367 (2016)).

“Appellate review of a suppression ruling involving a Fourth Amendment challenge presents a

mixed question of law and fact.” Id. at 304 (citation omitted). “‘This Court is “bound by the

trial court’s findings of historical fact unless plainly wrong or without evidence to support

them.”’ ‘However, the Court reviews de novo the overarching question of whether a search or

seizure violated the Fourth Amendment.’” Moreno v. Commonwealth, 73 Va. App. 267, 274

(2021) (citation omitted) (quoting Williams v. Commonwealth, 71 Va. App. 462, 475 (2020)).

“[O]ur review includes evidence presented at both the suppression hearing and the trial.” Id.

(quoting Williams, 71 Va. App. at 475).

“Police-citizen confrontations generally fall into one of three categories.” McGee v.

Commonwealth, 25 Va. App. 193, 198 (1997) (en banc). All three types occurred in this case.

“First, there are consensual encounters which do not implicate the Fourth Amendment.” Id.

Camann admits that his encounter with the deputies was consensual up until Deputy Spears told

him to move his foot. Second, “there are brief investigatory stops, commonly referred to as

‘Terry’ stops, which must be based upon reasonable, articulable suspicion that criminal activity

is or may be afoot.” Id.; see Terry v. Ohio, 392 U.S. 1, 27 (1968). We conclude in the first

section below that Deputy Spears’s statement to Camann to “move your foot” transformed the

consensual encounter into an investigative detention. But Spears’s directive was a minimal

imposition on Camann’s liberty, and it was supported by reasonable suspicion that Camann was

-6- engaged in criminal activity. The third type of encounter involves “‘highly intrusive, full-scale

arrests’ or searches which must be based upon probable cause to believe that a crime has been

committed by the suspect.” McGee, 25 Va. App. at 198 (quoting United States v. Sokolow, 490

U.S. 1, 7 (1989)). We conclude in the second section below that Spears’s discovery of the burnt

residue on the improvised smoking device that Camann was hiding under his shoe gave Spears

probable cause to arrest Camann for possessing a controlled substance.

1. The deputy’s request for Camann to move his foot was an investigative detention supported by reasonable suspicion.

The admissibility of the narcotics ultimately found in Camann’s pockets depends on

whether Deputy Spears’s telling Camann, “move your foot,” constituted an illegal seizure.8 To

answer that question, we must consider (1) whether Camann was seized at all when Deputy

Spears told him to move his foot and, if so, (2) whether the seizure was an investigatory

detention, for which reasonable suspicion was required, or an arrest, which would have required

probable cause. McGee, 25 Va. App. at 198. Camann argues that he was seized because Deputy

Spears’s words signaled to him that he was not free to leave.

8 The Commonwealth misplaces its contention that Camann had no reasonable expectation of privacy in the discarded foil under his shoe. The Commonwealth likens what happened here to searching the garbage left for the trash collector in a public place, which is not forbidden by the Fourth Amendment. See California v. Greenwood, 486 U.S. 35, 40-42 (1988). The Commonwealth contrasts that scenario with searching someone’s shoe while the person is wearing it, where a reasonable expectation of privacy attaches. See Sheler v. Commonwealth, 38 Va. App. 465, 477-78 (2002). While Camann argued in the trial court that Deputy Spears’s telling him to move his foot was both a search and a seizure, he pursues only the seizure claim here. In other words, Camann does not argue that the space under his shoe was illegally searched; he claims that his person was illegally seized when Spears told him to move his foot. “The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.” Horton v. California, 496 U.S. 128, 133 (1990) (emphases added). At this step of the inquiry, we evaluate whether Camann’s person was illegally seized, not whether the space under his foot was illegally searched. -7- We agree that Camann was seized when Deputy Spears told him to move his foot, not

because Camann was not free to leave, but because a reasonable person in Camann’s position

would not have felt free to keep his foot planted. “Only when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a citizen may we conclude

that a ‘seizure’ has occurred.” Terry, 392 U.S. at 19 n.16. A seizure ordinarily occurs when “a

reasonable person would have believed that he was not free to leave.” Piggott v.

Commonwealth, 34 Va. App. 45, 49 (2000) (quoting United States v. Mendenhall, 446 U.S. 544,

554 (1980)). But “when the person . . . has no desire to leave, the degree to which a reasonable

person would feel that he or she could leave is not an accurate measure of the coercive effect of

the encounter.” Florida v. Bostick, 501 U.S. 429, 435-36 (1991). Rather, “the appropriate

inquiry is whether a reasonable person would feel free to decline the officers’ requests or

otherwise terminate the encounter.” Id. at 436.

Camann wanted to remain where he stood—he wanted to keep his foot firmly planted.

We must therefore ask whether a reasonable person would have felt free to remain where he

stood after Deputy Spears said, “move your foot.” The Commonwealth argues that we are bound

by the trial court’s finding that Deputy Spears’s statement was a request, not a demand. Even if

it was a request, however, the relevant inquiry is the effect of that request on a reasonable person

in Camann’s position. It is not dispositive that the statement might not have been an order. The

question is whether a reasonable person would have felt “free to decline the officers’ requests.”

Bostick, 501 U.S. at 436.

We conclude that a reasonable person in Camann’s position would not have felt free to

defy the deputies by keeping his foot planted. Camann had a wall at his back and a deputy on

either side of him. The deputies told him that he had been accused of masturbating outside the

7-Eleven. “[W]hen a police officer confronts a person and informs the individual that he or she

-8- has been specifically identified as a suspect in a particular crime which the officer is

investigating, that fact is significant among the ‘totality of the circumstances’ . . . .” McGee, 25

Va. App. at 200. That revelation can “‘convey a message that compliance with their requests is

required’ and ‘that failure to cooperate would lead only to formal detention.’” Id. (first quoting

Bostick, 501 U.S. at 435; and then quoting United States v. Berry, 670 F.2d 583, 597 (5th Cir.

1982)).

We disagree with the Commonwealth that Camann “voluntarily moved his foot in

response to the request.” Camann’s movement was not “voluntary” because a reasonable person

would not have felt free to decline Deputy Spears’s request. That Camann instantly complied—

even though he did not want to—suggests that he thought he had to. Under the circumstances,

that was a reasonable conclusion. The “seizure of a person requires either physical force by the

police officer or, ‘where that is absent, submission to the assertion of authority.’” Beasley v.

Commonwealth, 60 Va. App. 381, 392 (2012) (quoting California v. Hodari D., 499 U.S. 621,

626 (1991)). Camann submitted to the deputy’s authority here.

We must next determine whether that seizure was made during an investigative detention

or an arrest, for that characterization determines the level of suspicion required to justify the

deputies’ actions. McGee, 25 Va. App. at 198. “An investigatory stop is permissible under the

Fourth Amendment if supported by reasonable suspicion,” Ornelas v. United States, 517 U.S.

690, 693 (1996), while a warrantless arrest requires probable cause to believe that a crime has

been or is being committed, see Cromartie v. Billings, 298 Va. 284, 300 (2020). The Supreme

Court of the United States has recognized the “difficult line-drawing problems in distinguishing

an investigative stop from a de facto arrest.” United States v. Sharpe, 470 U.S. 675, 685 (1985).

There are no rigid time limitations on investigative detentions or bright-line rules for evaluating

whether a seizure is an investigatory stop or a de facto arrest. Id. The “scope of the intrusion

-9- permitted [during an investigatory stop] will vary” with each case. Florida v. Royer, 460 U.S.

491, 500 (1983). “The test is whether the police methods were calculated to confirm or dispel

the suspicion quickly and with minimal intrusion upon the person detained.” Washington v.

Commonwealth, 29 Va. App. 5, 15 (1999).

Applying that test, we find that Deputy Spears’s request that Camann move his foot was

part of an investigative detention, not an arrest, because it was a minimal intrusion upon

Camann’s liberty. Camann did not have to move from where he was standing on the sidewalk of

the convenience store, let alone leave the premises. Deputy Spears’s suspicions would have been

confirmed or refuted in an instant by Camann’s simply moving his foot an inch or two in any

direction. Such a minimal intrusion on liberty is the hallmark of an investigative detention.

To justify telling Camann to move his foot, therefore, Deputy Spears needed only

“reasonable, articulable suspicion that [Camann was] engag[ed] in, or [wa]s about to engage in,

criminal activity.” Turner v. Commonwealth, 75 Va. App. 491, 500 (2022) (quoting McGee, 25

Va. App. at 202). “The requisite level of belief, when calibrated to reasonable suspicion, is less

than probable cause, less than a preponderance, and certainly less than beyond a reasonable

doubt.” Hill v. Commonwealth, 297 Va. 804, 817 (2019). A reasonable suspicion must not be

“‘the product of a volatile or inventive imagination’ or one ‘undertaken simply as an act of

harassment.’” Id. (quoting Terry, 392 U.S. at 28). “In reviewing whether an officer possessed

reasonable, articulable suspicion sufficient to justify a seizure, a reviewing court must consider

‘the totality of the circumstances—the whole picture.’” Mitchell v. Commonwealth, 73 Va. App.

234, 247 (2021) (quoting Sokolow, 490 U.S. at 8).

Deputy Spears had reasonable suspicion to tell Camann to move his foot. Camann was

standing in place, noticeably keeping his left shoe planted as he shifted his weight back and

forth. Deputy Spears could see a piece of aluminum foil sticking out from beneath Camann’s

- 10 - shoe. Through his training and experience, Spears knew that aluminum foil is often used with a

straw to smoke narcotics. Although Spears did not at first see the straw or the burnt residue, a

police officer in Deputy Spears’s position could form a reasonable belief that Camann was

engaged in criminal, drug-related activity and trying to hide the evidence. Thus, Deputy Spears

had “more than a hunch”; his suspicion “flow[ed] reasonably from articulable facts.” Asble v.

Commonwealth, 50 Va. App. 643, 648 (2007). What is more, the reasonableness of Spears’s

suspicion was corroborated by Camann’s admission at trial that he was “intentionally hiding

what was under [his] foot” because he “knew it was a drug and . . . knew that it is illegal to

possess drugs.” We thus conclude that the investigatory detention that occurred when Deputy

Spears said “move your foot” was properly supported by reasonable suspicion.

2. The deputies’ discovery of burnt residue on the improvised smoking device Camann was concealing gave them probable cause to arrest him for possession of a controlled substance.

We agree with the trial court that the deputies’ discovery of what Camann was hiding

under his foot gave them probable cause to arrest him. “Probable cause exists when the facts and

circumstances known to the officer ‘are sufficient to warrant a person of reasonable caution to

believe that an offense has been or is being committed.’” Park v. Commonwealth, 74 Va. App.

635, 646 (2022) (quoting Al-Karrien v. Commonwealth, 38 Va. App. 35, 47 (2002)). “This is an

objective standard that focuses on the totality of the facts and circumstances. It involves a much

lower evidentiary standard than proof beyond a reasonable doubt.” Id. (citation omitted).

In assessing probable cause, “we must consider what the ‘totality of the facts and

circumstances’ would have ‘reasonably meant to a trained police officer.’” Curley v.

Commonwealth, 295 Va. 616, 622 (2018) (quoting Jones v. Commonwealth, 279 Va. 52, 59

(2010)). That “includes, of course, an officer’s ‘common-sense conclusions about human

behavior.’” Id. at 623 (quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 587 (2018)).

- 11 - Though an officer’s “[s]ubjective intentions play no role in ordinary, probable-cause Fourth

Amendment analysis,” Whren v. United States, 517 U.S. 806, 813 (1996), “a police officer may

draw inferences based on his own experience in deciding whether probable cause exists,”

Ornelas, 517 U.S. at 700.

When Camann moved his foot, Deputy Spears discovered a straw alongside the

aluminum foil that Camann was concealing. As Spears testified and as the body-camera footage

showed, the foil contained burnt residue. As noted above, Deputy Spears testified that, based on

his “training and experience,” it is common for people to use aluminum foil and a plastic straw to

smoke narcotics. To a layperson, those items might seem like litter, but to Deputy Spears, whose

testimony about his “training and experience” we must give “due weight,” Ornelas, 517 U.S. at

700, they reasonably suggested drug possession.

Finding burnt residue on an improvised device for smoking narcotics created probable

cause to believe that Camann was in possession of a controlled substance. We have held (and

our Supreme Court has affirmed) that “the finding of white powder residue on a cut-off straw by

an officer experienced in investigating crimes involving narcotics is sufficient to constitute

probable cause”—in that case, probable cause to justify a warrantless search of the defendant’s

vehicle. Carson v. Commonwealth, 12 Va. App. 497, 503, aff’d en banc, 13 Va. App. 280

(1991), aff’d, 244 Va. 293 (1992).

We also found the appearance of drug residue sufficient to constitute probable cause in

Commonwealth v. Ramey, 19 Va. App. 300, 304 (1994). The police officer there found the

suspect in possession of an improvised smoking device—a plastic bottle covered with foil that

was punched with holes—and the foil had “carbon burn marks on it.” Id. at 301. “Because of

the officer’s experience with drugs, the bottle appeared to him to be a homemade ‘bong’ used for

smoking illegal drugs.” Id. “The officer seized the device and arrested the defendant, who was

- 12 - later charged with possession of cocaine because of cocaine residue on the foil.” Id. at 302. We

held that the officer had probable cause to seize the device despite that he could not determine

what drug had been smoked. Id. at 304. “Because of the distinctive character of the plastic

bottle with foil on top and the highly unlikely event that it would have a legitimate use, the

officer had probable cause to believe that the ‘homemade bong’” was evidence of a crime. Id.

(emphasis added).9

In short, since Spears had probable cause to arrest Camann for possession of narcotics,

“the subsequent search” of Camann “was a lawful search incident to arrest under the Fourth

Amendment.” Perry v. Commonwealth, 280 Va. 572, 582 (2010). The trial court thus

committed no error in denying Camann’s motion to suppress the evidence.

B. The evidence did not support the etizolam conviction (Assignment of Error 2).

Camann also assigns error to the trial court’s refusal to grant his motion to strike the

Commonwealth’s evidence on the etizolam charge. He argues that, for a defendant to be

convicted of two felonies for possessing a single mixture containing two different controlled

substances, the Commonwealth must prove that the defendant knew that the mixture contained

more than one controlled substance. We agree.

9 Courts in other jurisdictions have likewise found that the discovery of drug residue on the defendant’s person or on a narcotics pipe found in the defendant’s possession provided probable cause to arrest the suspect for possession of a controlled substance. See State v. Rose, 282 P.3d 1087, 1093 (Wash. 2012) (en banc) (finding probable cause for a warrantless arrest “for possession of a controlled substance” when the officer “had a plain view of a glass pipe, with a white residue inside, that in his training and experience he suspected were consistent with drug possession”); People v. Edwards, 925 N.E.2d 576, 577 (N.Y. 2010) (“Because drug residue was first seen [on the defendant’s hand] while the police had a justifiable basis to continue the detention for the traffic infraction, that observation provided probable cause to arrest and search defendant.”); Bright v. State, 455 S.E.2d 37, 52 (Ga. 1995) (“The officer’s subsequent observation of a crack pipe and of crack cocaine residue on the pipe was probable cause for the arrest for possession of a controlled substance.”). - 13 - 1. Code § 18.2-250 requires knowing possession for each count charged.

Mens rea means “[t]he state of mind that the prosecution, to secure a conviction, must

prove that a defendant had when committing a crime.” Mens Rea, Black’s Law Dictionary (11th

ed. 2019). The term is often used interchangeably with “scienter.” E.g., Esteban v.

Commonwealth, 266 Va. 605, 606-07 (2003); Maye v. Commonwealth, 213 Va. 48, 49 (1972)

(per curiam).

In interpreting the mens rea element required to convict for drug possession under Code

§ 18.2-250, we do not write on a clean slate. We held in Sierra “that the plain language of Code

§ 18.2-250 requires a defendant to know that the substance he possesses is in fact a controlled

substance, but that it does not require him to know precisely what controlled substance it is.” 59

Va. App. at 775. Thus, if a person thinks he has heroin, but it turns out to be fentanyl, that

person has still “knowingly or intentionally . . . possess[ed] a controlled substance.” Code

§ 18.2-250; Sierra, 59 Va. App. at 783-84 (“A claim by a defendant that he knew he was

possessing a controlled substance, but was unaware or mistaken as to the precise identity of that

substance, is not a defense under Code § 18.2-250.”).

We have also held that a defendant who possesses multiple caches of the same controlled

substance can be convicted of only one violation of Code § 18.2-248, which prohibits possession

with intent to distribute, unless the Commonwealth can prove “separate intents” respecting each

cache. Lane v. Commonwealth, 51 Va. App. 565, 580-81 (2008). We based that conclusion on

the Double Jeopardy Clause of the Fifth Amendment, which “protects against multiple

punishments for the same offense.” Id. at 576 (quoting Brown v. Ohio, 432 U.S. 161, 165

(1977)).

- 14 - To date, however, neither our Supreme Court nor this Court has addressed in a published

decision10 whether two violations of Code § 18.2-250 can be sustained when a defendant

possesses two different controlled substances so mixed or fused together as to make them

indivisible. Courts in other jurisdictions have divided on whether only a single prosecution is

permitted in those circumstances.11 But Camann did not argue that he could be convicted of only

a single felony for possessing the mixture of fentanyl and etizolam. He argues instead that the

prosecution failed to prove that he had the mens rea to support the second conviction. We

therefore assume without deciding that two prosecutions are permissible for possessing a single

mixture, provided the mens rea requirement is satisfied.

The inquiry then becomes whether the prosecution, to obtain two convictions under Code

§ 18.2-250, must prove that the defendant knew that a single mixture in his possession contained

two controlled substances. We conclude that the statute indeed places that burden on the

prosecution and that the prosecution failed to shoulder its burden here. Our conclusion is

supported by the text of Code § 18.2-250, our Supreme Court’s rejection of a constructive

knowledge requirement for possession, the history of this code section, and the general

presumption that serious offenses require guilty knowledge.

10 We address below our unpublished decision in Howard v. Commonwealth, No. 0780- 17-1, 2018 WL 2604993 (Va. Ct. App. June 5, 2018). 11 Compare State v. Morgan, 140 N.E.3d 171, 178 (Ohio Ct. App. 2019) (“Clearly, if an individual has a baggie of, for example, heroin, in his left pocket and a baggie of fentanyl in his right pocket, he could be convicted and sentenced for each substance. We see no reason why an individual who chooses to engage in the sale or use of Schedule I controlled substances should escape responsibility for both Schedule I controlled substances simply by mixing one substance into the other.”), with State v. Owens, 579 A.2d 766, 768 (Md. 1990) (“Taking a common sense view of the matter, we are simply not persuaded that the legislature intended separate prosecutions and punishments for possession of PCP and possession of marihuana where the two substances have been, for all practical purposes, irrevocably joined as one.”). - 15 - a) The text of Code § 18.2-250

We begin with the text of the statute. “Questions of statutory interpretation . . . are

subject to de novo review on appeal, and we owe no deference to the circuit court’s interpretation

of the statutory scheme.” Esposito v. Va. State Police, 74 Va. App. 130, 133 (2022). “When

construing a statute, [the Court’s] primary objective ‘is to ascertain and give effect to legislative

intent,’ as expressed by the language used in the statute.” Va. Elec. & Power Co. v. State Corp.

Comm’n, 295 Va. 256, 262-63 (2018) (quoting Cuccinelli v. Rector & Visitors of the Univ. of

Va., 283 Va. 420, 425 (2012)). “We must determine the legislative intent by what the statute

says and not by what we think it should have said.” Miller & Rhoads Bldg., L.L.C. v. City of

Richmond, 292 Va. 537, 541-42 (2016) (quoting Carter v. Nelms, 204 Va. 338, 346 (1963)).

The statutory text here strongly suggests that proof of mens rea is required to convict a

defendant under each indictment that alleges illegal possession of a Schedule I or II controlled

substance:

A. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription . . . .

....

(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony . . . .

Code § 18.2-250 (emphases added). This language establishes a clear mens rea requirement, as

it criminalizes only knowing or intentional possession. Nothing in the text supports the notion

that as long as the defendant knows that he possesses one controlled substance, he can be

convicted of as many felonies as the number of controlled substances found in the mixture.

We disagree with the Commonwealth’s contrary view that if a defendant knowingly

possesses “at least one controlled substance, . . . that knowledge is sufficient to convict him of

possession of” every other controlled substance that may be identified through laboratory - 16 - analysis. The Commonwealth’s reading is not supported by the phrase “any controlled

substance” in subpart (a), which provides that a “person who violates this section with respect to

any controlled substance” is guilty of a Class 5 felony if the substance is listed on Schedule I or

II. Code § 18.2-250(A)(a) (emphasis added). Quite simply, a defendant has not violated Code

§ 18.2-250 unless he does so “knowingly or intentionally.” Code § 18.2-250(A). Nothing in the

word “any” justifies decoupling the mens rea from the actus reus required for each conviction for

possessing a controlled substance.12

b) The insufficiency of presumed knowledge

The Commonwealth’s position would also revive a theory of constructive knowledge of

drug possession that has been roundly rejected by the Supreme Court. More than 30 years ago,

our Court held in Josephs v. Commonwealth, 10 Va. App. 87 (1990) (en banc), that “[p]ossession

of a controlled drug gives rise to an inference of the defendant’s knowledge of its character.” Id.

at 101. But the Supreme Court overruled Josephs and rejected that presumption in Young v.

Commonwealth, 275 Va. 587 (2008). Young made clear that “[a]ctual or constructive possession

alone is not sufficient. ‘The Commonwealth must also establish that the defendant intentionally

and consciously possessed it with knowledge of its nature and character.’” Id. at 591 (citation

omitted) (quoting Burton v. Commonwealth, 215 Va. 711, 713 (1975)). The Court called that

knowledge “an essential element of the crime.” Id. (emphasis added).

12 Even if the phrase “any controlled substance” supported the Attorney General’s strict- liability reading, it would at best render the statutory text ambiguous given the requirement in Code § 18.2-250(A) that a person “knowingly or intentionally” possess a controlled substance. Such ambiguity would call for applying the rule of lenity, thus construing the statute “strictly against the state and favorably to the liberty of the citizen.” Morgan v. Commonwealth, ___ Va. ___, ___ (Dec. 29, 2022) (quoting Sutherland v. Commonwealth, 109 Va. 834, 835 (1909)). As the discussion below confirms, applying the rule of lenity here would not “conflict with the implied or express intent” of the General Assembly and would not create “an overly ‘restrictive interpretation of the statute.’” Id. (first quoting Kohl’s Dep’t Stores, Inc. v. Va. Dep’t of Tax’n, 295 Va. 177, 188 n.8 (2018); and then quoting McGinnis v. Commonwealth, 296 Va. 489, 504 (2018)). - 17 - By permitting multiple convictions for possession while treating as irrelevant whether the

defendant knowingly possessed more than one controlled substance, the Attorney General would

eliminate knowledge as an essential element of the additional counts charged. The

Commonwealth conceded at oral argument that, under its reading of the statute, a defendant who

thought he possessed just one controlled substance could be convicted of 15 felonies if chemical

testing revealed the mixture contained 15 substances listed on Schedules I or II. Given that more

than 400 controlled substances combined appear on those schedules, see Code §§ 54.1-3446,

54.1-3448, it takes little imagination to envision double-digit felony indictments—each carrying

a maximum punishment of ten years in prison, Code § 18.2-10(e)—against a defendant who

thought he possessed just one illegal drug. The Commonwealth’s position creates a strict-

liability regime for extra felony counts that cannot be reconciled with Young.

c) The history of Virginia’s possession statute

The history of Virginia’s possession statute further corroborates our conclusion that a

conviction for possession under Code § 18.2-250 must be supported by proof of knowing

possession.

“[D]rug possession was never a common law crime,” State v. Sitton, No. 45088-7-II,

2015 WL 161299, *4 (Wash. Ct. App. Jan. 13, 2015), and Virginia did not criminalize the

possession of illicit drugs until the twentieth century. In 1908, Virginia criminalized the

distribution of cocaine without a prescription, treating cocaine possession as “prima facie

evidence of an intent to sell, give away or otherwise dispense the same.” 1908 Va. Acts ch. 255,

§§ 1, 2 (codified at 1 Code of 1919, §§ 1696-97). The Supreme Court of Virginia interpreted

that provision to require knowing possession, quoting a popular treatise for the proposition that a

defendant “can only be required to account for the possession of things which he actually and

- 18 - knowingly possessed.” Henderson v. Commonwealth, 130 Va. 761, 766-77 (1921) (quoting 3

Simon Greenleaf, A Treatise on the Law of Evidence § 33 (16th ed. 1899)).

In 1932, the National Conference of Commissioners on Uniform Laws (“National

Conference”) proposed the Uniform Narcotic Drug Act, see Richard L. Braun, Uniform

Controlled Substances Act of 1990, 13 Campbell L. Rev. 365, 365 (1991), which was

“universally adopted by the states,” Ritter v. Commonwealth, 210 Va. 732, 742 (1970). Virginia

adopted it in 1934. See 1934 Va. Acts ch. 86; Code of 1942, §§ 1654(1) to 1654(25); Code of

1950, §§ 54-487 to 54-519.

Section 2 of the Act made it “unlawful for any person to manufacture, possess, have

under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as

authorized in this act.” 1934 Va. Acts ch. 86, § 2; Code of 1942, § 1654(2); Code of 1950,

§ 54-488.13 Noticeably absent from the text was any requirement that a person knowingly

possess a narcotic drug.

By 1963, however, most courts to consider the question had agreed that scienter was

required, despite that “[k]nowledge of the alleged possessor, or his intention to possess, is not

mentioned by the language of § 2.” B. Finberg, What constitutes “possession” of a narcotic

drug proscribed by § 2 of the Uniform Narcotic Drug Act, 91 A.L.R.2d 810, 821 (1963). In

1970, our Supreme Court joined that consensus, holding that scienter was needed to prove a

violation:

In order to convict a defendant of “possession” of a narcotic drug, within the meaning of Virginia’s Uniform Narcotic Drug Act, it generally is necessary to show that defendant was

13 The Act defined “narcotic drug” as “coca leaves and opium, and every substance not chemically distinguishable from them.” Code of 1942, § 1654(1), (13). The General Assembly later expanded the definition to include “cannabis.” 1952 Va. Acts ch. 451 (amending then-Code § 54-487); Johnson v. Commonwealth, 211 Va. 815, 819-20 (1971). - 19 - aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.

Ritter, 210 Va. at 741; see Sierra, 59 Va. App. at 782 n.8 (tracing the scienter standard adopted

in Ritter to the 1963 A.L.R. annotation).

Also in 1970, the National Conference promulgated a new uniform law, the Uniform

Controlled Substances Act, to replace the Uniform Narcotic Drug Act. See Braun, supra, at 365.

The new uniform law was also quickly adopted by most States. Id. Virginia called its version of

the law the “Drug Control Act.” See 1970 Va. Acts ch. 650. The Drug Control Act criminalized

the possession of any “controlled drug,” id. (§ 54-524.101(c)), defined as “a drug or substance in

Schedules I through V” of the act, id. (§ 54-524.2(b)(6)).

The 1970 Act codified the scienter requirement that Ritter had found implicit under the

1934 law: “It is unlawful for any person knowingly or intentionally to possess a controlled drug

unless such substance was obtained directly or pursuant to a valid prescription or order from a

practitioner . . . .” Code § 54-524.101(c) (emphasis added). Other than changing “controlled

drug” to “controlled substance,” the text of the current statute—Code § 18.2-250—is virtually

identical to the 1970 version. And despite many amendments over the years to the Drug Control

Act, the General Assembly has never altered the knowing-possession requirement.

In sum, the Supreme Court of Virginia required proof of scienter long before the

predecessors to Code § 18.2-250 specified a mens rea requirement, and the General Assembly

made clear that the Drug Control Act requires knowing possession. That legislative history

undermines the Commonwealth’s suggestion that a defendant may be convicted of felony

possession for every controlled substance that happens to be found in a mixture in his possession,

without proof that the defendant was “intentionally and consciously in possession,” Ritter, 210

Va. at 741, of more than one controlled substance.

- 20 - d) The presumption of mens rea for serious offenses

The Commonwealth’s position also strays from what Justice Scalia and Professor Garner

called the “Mens Rea Canon”:

A statute creating a criminal offense whose elements are similar to those of a common-law crime will be presumed to require a culpable state of mind (mens rea) in its commission. All statutory offenses imposing substantial punishment will be presumed to require at least awareness of committing the act.

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 303 (2012).

To be sure, the Supreme Court of Virginia has not yet explicitly adopted the mens rea

presumption for serious statutory crimes. But Ritter implicitly did so. As noted above, the

Uniform Narcotic Drug Act created a serious statutory offense, unknown at common law,

without specifying any mens rea requirement. Still, Ritter concluded that the statute required

proof of knowing possession. 210 Va. at 741. Likewise, in Maye, the Court inferred a scienter

requirement in the larceny-after-bailment statute, finding that “the legislature implicitly intended

that [scienter] must be proved.” 213 Va. at 49. In Esteban, by contrast, the Court held that

felony possession of a firearm on school grounds was a “strict liability” offense when the statute

contained no explicit knowledge requirement and the Court could discern no intent by the

legislature to impose one. 266 Va. at 608-10. See generally Clayton v. Commonwealth, 75

Va. App. 416, 429-31 (2022) (Raphael, J., concurring) (describing the tension between Esteban

and the mens rea presumption).

For serious offenses that were not crimes at common law, courts in most American

jurisdictions, including the Supreme Court of the United States, have recognized a mens rea

presumption. Id. at 425-30 & nn.5-6 (collecting authorities). As Justice Jackson put it in

Morissette v. United States, 342 U.S. 246 (1952), mens rea is not some “provincial or transient

notion” but is “as universal and persistent in mature systems of law as belief in freedom of the

- 21 - human will and a consequent ability and duty of the normal individual to choose between good

and evil.” Id. at 250. Applying a mens rea presumption for offenses imposing serious

punishment reflects “the common-sense intuition that people should not be subject to lengthy

prison terms for conduct that they did not know was wrongful.” Clayton, 75 Va. App. at 433

(Raphael, J., concurring).

We find the mens rea presumption appropriate here too. Given the legacy of Ritter and

the General Assembly’s explicit inclusion of a knowledge requirement in Code § 18.2-250, this

is an easy case for recognizing it.

e) Howard

Finally, we decline the Commonwealth’s invitation to resolve this case based on Howard

v. Commonwealth, No. 0780-17-1, 2018 WL 2604993 (Va. Ct. App. June 5, 2018).14 Howard

upheld two convictions under Code § 18.2-250 for the defendant’s possession of a single

powdery substance determined by chemical testing to contain two Schedule I or II substances,

heroin and fentanyl. Slip op. at 2, 14, 2018 WL 2604993, at *1, *7. The defendant in Howard

argued that if the Commonwealth could not prove that he intended to possess more than one

controlled substance in the mixture, then “both of his convictions must be reversed.” Id. at 1,

2018 WL 2604993, at *1. The Court rejected that claim, under which “the more drugs the

capsule contained that appellant has in his possession, the more this Court is required to reverse

each of appellant’s convictions.” Id. at 9, 2018 WL 2604993, at *4. We agree that the

defendant’s theory in Howard was misguided.

But “[r]equiring a mens rea showing for each count of possession does not make the first

count of possession any harder to prove, only the subsequent counts.” Joshua P. Stock, A Tale of

14 Citation of an unpublished opinion is “permitted as informative, but will not be received as binding authority.” Rule 5A:1(f). - 22 - Two Counts of Possession . . . For One Pill: A Reexamination of the Virginia Court of Appeals’s

Decision in Howard v. Commonwealth, 30 Geo. Mason U. Civ. Rts. L.J. 205, 229 (2020).15

Howard failed to grapple with the problem that not requiring proof that the defendant knowingly

possessed more than one controlled substance creates a strict-liability crime for every additional

substance that may be found in the mixture.16

We are not persuaded by Howard’s policy rationale that imposing criminal liability in

this situation is justified by “the General Assembly’s considerable efforts to combat the problem

of illegal drugs.” Slip op. at 5, 2018 WL 2604993, at *3. Combatting illegal drug possession is

unquestionably important. But that is not the only value at stake. As shown above, the history

of Code § 18.2-250 and its predecessors shows the critical importance of knowledge as “an

essential element of the crime.” Young, 275 Va. at 591. We should not abrogate that protection

unless the statute makes it unmistakably clear that the General Assembly intends to create a

strict-liability offense.

15 Still, proving that a defendant knowingly possessed a mixture containing more than one controlled substance would not be the impossible burden suggested in Judge Athey’s dissent. For example, where a defendant knowingly possessed a drug by its street name, the prosecution might present testimony that the street name is commonly understood to refer to a combination of controlled substances, such as speedball, a “mixture of cocaine and heroin.” United States v. Paulino, 13 F.3d 20, 22 (1st Cir. 1994). See generally Drug Enforcement Agency, Slang Terms and Code Words: A Reference for Law Enforcement Personnel (July 2018), https://www.dea.gov/sites/default/files/2018-07/DIR-022-18.pdf. 16 The two out-of-state authorities on which Howard relied are also not persuasive. See Howard, slip op. at 11-12, 2018 WL 2604993, at *6-7 (discussing State v. Hall, 692 S.E.2d 446 (N.C. Ct. App. 2010), and State v. Woodard, No. CA2016-09-084, 2017 WL 3128807 (Ohio Ct. App. July 24, 2017)). Hall did not address the mens rea requirement for proving multiple counts arising from of possession of a single mixture. And the majority in Woodard appeared to assume the need to prove knowing possession of a mixture containing two controlled substances (heroin and fentanyl) but split with the dissent over whether the prosecution had successfully proven such knowledge. Compare Woodard, 2007 WL 3128807, at *6 n.2 (“Here, a jury found that appellant knowingly possessed two separate controlled substances . . . .”), with id., at *8 (Ringland, J., dissenting) (“I have reservations about allowing two convictions under these circumstances where there is absolutely no evidence, either directly or circumstantially, that appellant knew the bag contained two separate opioid drugs.”). - 23 - 2. The Commonwealth failed to prove scienter for the second controlled substance found in the mixture.

The prosecution failed here to exclude the reasonable hypothesis of innocence that

Camann knowingly possessed only one controlled substance—fentanyl—and did not know that

the substance was a mixture that contained a second controlled substance. The prosecution had

the burden to prove Camann’s knowing possession for each count charged. But the prosecution

presented no evidence during its case-in-chief to show that Camann knew that there was more

than one controlled substance in the white powder found in his wallet. The evidence did not get

better for the Commonwealth on the etizolam charge after the defense’s case. While Camann

admitted that the white powder was his and that he was a drug addict, he testified that he

believed that the powder was fentanyl; he had “no idea” that it also contained etizolam, a

substance he had “never heard of” before.17

The failure of proof here is like that in Young. The defendant there was found with a

prescription-pill bottle in her purse that contained a tablet that chemical testing revealed to be

morphine. 275 Va. at 589. A witness testified that the pill bottle was hers, that she had

inadvertently left it behind in the car driven by the defendant, and that the defendant had called

to say that she had found the bottle. Id. at 590. The Supreme Court held that the evidence could

not exclude the reasonable hypothesis of innocence that the defendant did not know of the

character of the contents of the pill bottle that turned out to be morphine. Id. at 592. The Court

observed that the officer “could not determine their nature without submitting them for

laboratory analysis, and there is no reason to infer that the defendant was any better informed.”

17 Camann was not the only one unfamiliar with etizolam. The prosecutor, the sheriff’s deputy, the defense lawyer, and the trial judge all said at different points during the trial that they could not pronounce the name of the drug. The prosecutor called it “the E-drug” for short. - 24 - Id. “The ambiguous circumstantial evidence concerning the appearance of the bottle and its

contents is as consistent with a hypothesis of innocence as it is with that of guilt.” Id.

The same is true here. The prosecution failed to exclude the reasonable hypothesis of

innocence that Camann believed that the white powder contained only one controlled

substance—fentanyl. The record lacks evidence to support a finding beyond a reasonable doubt

that Camann knew that the white powder was a mixture that contained a second controlled

substance as well.

CONCLUSION

We affirm the trial court’s decision denying Camann’s motion to suppress the evidence,

but we reverse Camann’s conviction (CR21-215) for possession of a Schedule I or II controlled

substance (etizolam).

Affirmed in part, reversed and final judgment in part.

- 25 - Athey, J., concurring in part and dissenting in part.

I agree with the majority that the trial court correctly denied Camann’s suppression

motion. I also concur with the majority in affirming his conviction for possessing fentanyl. But

I disagree with the majority that, to satisfy the mens rea requirement for two separate convictions

under Code § 18.2-250, the Commonwealth needed to prove Camann knew he possessed two

separate controlled substances. I therefore respectfully dissent from the majority’s decision to

reverse Camann’s conviction for possessing etizolam. Instead, I would have also affirmed

Camann’s conviction for possession of etizolam under Code § 18.2-250 since the

Commonwealth sufficiently established the requisite mens rea in support of both convictions by

proving Camann knowingly possessed a controlled substance.

“[T]he plain language of Code § 18.2-250 requires a defendant to know that the

substance he possesses is in fact a controlled substance, but . . . it does not require him to know

precisely what controlled substance it is.” Sierra v. Commonwealth, 59 Va. App. 770, 775

(2012). As we have stated, the mens rea requirement in Code § 18.2-250 only applies to

subsection (A). Id. at 778 (“[T]he General Assembly chose to specify a requisite degree of mens

rea only in the general proscription against possessing controlled substances in the first

paragraph of subsection (A).”). “Nowhere, however, in subparts (a)-(c) did the General

Assembly insert a mens rea requirement.” Id. at 777-78. Instead, subparts (a)-(c) focus on the

defendant’s actus reus and the specific type (or in this case, types) of substance(s) found in the

defendant’s possession. Id. at 778 (“The specific type of substance found in a defendant’s

possession is an actus reus element the Commonwealth must prove pursuant to subparts (a)-(c)

of Code § 18.2-250(A), but it is not an element to which the mens rea requirement found earlier

in Code § 18.2-250(A) applies.”).

- 26 - “[T]he General Assembly has chosen not to excuse a defendant who knows he is

possessing a controlled substance, but is unaware or perhaps mistaken as to the precise identity

of the specific substance he is possessing . . . .” Id. at 779. The legislature has decided that if a

defendant knows that the substance he possesses is controlled, he bears the risk of incurring

whatever punishment is prescribed for possessing everything in that specific substance. Id. (“A

defendant who intentionally possesses a controlled substance, aware of its nature and character

as such, bears the risk of incurring whatever punishment the General Assembly has prescribed

for the possession of the specific substance he has. This is the policy the legislature has

embraced, and we will not substitute our own policy for that of the legislature.”).

Accordingly, I take issue with the majority requiring the Commonwealth to prove

Camann knew the precise number of controlled substances in the mixture he possessed in order

to be convicted of a corresponding number of counts under Code § 18.2-250.18 “[T]he plain

language of Code § 18.2-250 indicates the legislature’s intent to criminalize the knowing and

intentional possession of ‘a controlled substance,’ whatever that controlled substance may turn

out to be.” Id. at 778. Here, what Camann possessed turned out to contain two separate

controlled drugs: fentanyl and etizolam. While Camann did need to know that he possessed a

controlled substance to be convicted, he “[did] not need to know the exact nature of the

substance in his possession, only that it was a controlled substance of some kind.” Id. at 781

(emphasis added) (quoting United States v. Martin, 274 F.3d 1208, 1210 (8th Cir. 2001)).

18 Although the majority argues it is only requiring Camann to know how many controlled substances he possessed, not which controlled substances he possessed, based on the majority’s interpretation of Code § 18.2-250, this seems a distinction without a difference. From a practical standpoint, I doubt whether the Commonwealth could prove a defendant knew how many controlled substances he possessed without also proving the defendant knew which controlled substances he possessed. - 27 - Additionally, as the majority aptly states, under Sierra, “if a person thinks he has heroin,

but it turns out to be fentanyl, that person has still ‘knowingly or intentionally . . . possess[ed] a

controlled substance.’” Code § 18.2-250; Sierra, 59 Va. App. at 783-84. But the majority

seemingly argues that Sierra should apply with less force when a defendant thinks he possesses

heroin, but actually possesses a mixture containing heroin and fentanyl. In that case, the

defendant, like Sierra, would still know he possessed a controlled substance and would still be

mistaken as to the precise controlled drug or drugs making up the controlled substance. Thus,

consistent with Sierra, the defendant’s mistake as to the specific controlled substances in the

mixture cannot be a defense under the plain meaning of Code § 18.2-250. Sierra, 59 Va. App. at

783-84 (“A claim by a defendant that he knew he was possessing a controlled substance, but was

unaware or mistaken as to the precise identity of that substance, is not a defense under Code

§ 18.2-250.”).

While I appreciate the majority’s concern regarding some of the potentially harsh

outcomes that could result from interpreting the statute based on its plain meaning as supported

by Sierra, such fears seem to arise from the potential policy implications, not legal interpretation.

See Daily Press, LLC v. Off. of Exec. Sec’y of Sup. Ct., 293 Va. 551, 557 (2017) (“Public policy

questions concerning where to draw the line . . . fall within the purview of the General

Assembly. In a regime of separated powers that assigns to the legislature the responsibility for

charting public policy, our function is limited to adjudicating . . . question[s] of law . . . .”). Our

“drug statutes require specific knowledge or intent as to a general category of unlawful items.

The specific unlawful items, however, are found in the penalty section of the scheme.” Sierra,

59 Va. App. at 781 (emphasis added) (quoting United States v. Barbosa, 271 F.3d 438, 458 (3d

Cir. 2001)) (explaining how the reasoning behind 21 U.S.C. § 841 “applies with equal force to

Code § 18.2-250”). Thus, we cannot “arbitrarily add specific mens rea requirements to elements

- 28 - of an offense where the General Assembly has expressly prescribed what mens rea requirements

it wishes to impose.” Id. at 778. “Such public policy arguments cannot contravene clear

statutory language and should be addressed to the legislature, not the courts.” Hartford

Underwriters Ins. Co. v. Allstate Ins. Co., ___ Va. ___, ___ (Dec. 8, 2022).

Since I would have affirmed Camann’s convictions for possession of both fentanyl and

etizolam pursuant to Code § 18.2-250, I respectfully dissent.

- 29 - Chaney, J., concurring in part and dissenting part.

I concur with the majority’s holding that the evidence is insufficient to prove that Camann

knowingly or intentionally possessed both fentanyl and etizolam in violation of Code § 18.2-250

because the evidence fails to prove that Camann knew that the white powder in his possession

contained more than a single controlled substance. I dissent, however, from the majority’s opinion

affirming the trial court’s denial of Camann’s suppression motion because I conclude that the

deputies obtained the drugs in violation of Camann’s constitutional rights against unreasonable

searches and seizures. See U.S. Const. amend. IV.

I. NO REASONABLE SUSPICION FOR THE INVESTIGATIVE SEIZURE

Deputy Spears and Deputy Russell observed Camann outside the 7-Eleven convenience

store when they arrived to investigate a public-indecency complaint. Deputy Spears initially

conversed with Camann during a consensual encounter while Deputy Russell investigated inside the

store. Camann’s police encounter was no longer consensual when Deputy Spears directed him to

move his left foot so the deputy could inspect a piece of foil next to and partially under Camann’s

shoe. As the majority recognizes, Camann was seized when he submitted to the deputy’s authority

and lifted his foot. See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (recognizing that a seizure has

occurred “when the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen”); Cochran v. Commonwealth, 258 Va. 604, 608 (1999)

(recognizing that a seizure occurs when a person submits to an officer’s show of authority).

Contrary to the majority’s opinion, Deputy Spears’s seizure of Camann was not a lawful

investigative detention. Under Terry and its progeny, a police officer may lawfully detain a person

to make reasonable inquiries when the officer has reasonable, articulable suspicion to believe that

the person is engaged in criminal activity. See Terry, 392 U.S. at 21-22. “Whether an officer has a

reasonable suspicion to justify . . . a detention is ‘based on an assessment of the totality of the

- 30 - circumstances.’” Hill v. Commonwealth, 68 Va. App. 610, 619 (2018) (alteration in original)

(quoting Branham v. Commonwealth, 283 Va. 273, 280 (2012)). “When examining the officer’s

articulable reasons for stopping a person, we examine the objective reasonableness of the officer’s

behavior rather [than] the officer’s subjective belief that the conduct indicates criminal activity.”

Riley v. Commonwealth, 13 Va. App. 494, 496-97 (1992) (citing Terry, 392 U.S. at 21-22).

The totality of the circumstances at the time of the seizure did not give rise to reasonable,

articulable suspicion that Camann was engaged in criminal drug activity. Although the police were

called to investigate a complaint about alleged indecent conduct outside the store, there was no

complaint of criminal drug activity. There is no evidence that the store was in an area known for

drug activity. Neither deputy saw Camann engaged in any drug activity when they observed him

standing by the store. Neither deputy saw Camann with any drugs or drug paraphernalia. Neither

deputy observed any indicia that Camann was under the influence of drugs when they conversed

with him. After noticing a piece of foil next to and partially under Camann’s left foot, Deputy

Spears seized Camann based on (1) the deputy’s training and experience that aluminum foil is

commonly used to smoke narcotics and (2) the deputy’s hunch that Camann was concealing drug

evidence under his foot. But such an unparticularized suspicion and hunch are insufficient to justify

the investigative seizure of Camann. See Terry, 392 U.S. at 27 (holding that police must have more

than an unparticularized suspicion or hunch to justify an investigatory stop). Neither deputy saw

Camann hold, use, or discard the foil before they noticed it under Camann’s shoe. Before Deputy

Spears seized Camann, neither deputy saw anything on or near the foil to indicate that the foil was

drug-related.19 Considered objectively, the totality of the circumstances at the time Camann was

seized was insufficient to give rise to reasonable, articulable suspicion that criminal drug activity

19 The burnt residue on the foil was never identified, and none of Camann’s convictions are based on the foil or its contents. - 31 - was afoot. Under these circumstances, the deputy’s observation of a suspected act of concealment

by Camann did not legally justify the seizure. See Smith v. Commonwealth, 12 Va. App. 1100,

1104 (1991) (holding that police unlawfully seized the defendant based on suspected concealment

of drugs when the defendant “quickly move[d] to put his hand into his pants when the officer’s

marked car came into view” in an area known for significant drug activity); Riley, 13 Va. App. 494

(holding that police unlawfully seized the defendant based on suspected concealment of drugs when

the defendant, in a high crime area, turned and reached toward his waistband upon seeing the

officer); Goodwin v. Commonwealth, 11 Va. App. 363, 367 (1990) (holding that police unlawfully

seized the defendant based on suspected concealment of a weapon when the defendant “shoved his

hand in his coat pocket, apparently upon seeing the approaching patrol car”). Camann’s subsequent

admission that he was concealing the foil underfoot does not add to the objective facts available to

the deputy at the time of the seizure and does not convert the deputy’s hunch into reasonable

suspicion.

Even if, based on reliable witness reports, the deputies had reasonable suspicion to detain

Camann to investigate alleged public indecency, Deputy Spears’s directive that Camann move his

left foot was unlawful because the directive exceeded the scope of a lawful investigative detention

related to the witnesses’ complaints. See Terry, 392 U.S. at 29 (holding that an investigative

detention must be “reasonably related in scope to the justification for [its] initiation”). Since the

deputy’s inspection of the foil was not reasonably related to the investigation of alleged public

indecency, the seizure of Camann to investigate the foil violated Camann’s constitutional right

against unreasonable seizures.

Since Deputy Spears seized Camann in violation of his Fourth Amendment rights, the

evidence obtained pursuant to the unlawful seizure and subsequent arrest should have been

suppressed and the convictions based on such evidence should be reversed. See Davis v.

- 32 - Commonwealth, 37 Va. App. 421, 435 (2002) (reversing drug conviction where police unlawfully

detained defendant without reasonable, articulable suspicion that defendant was involved in

criminal activity and drugs were found as a result of the unlawful seizure). Because the evidence

seized from Camann should have been suppressed, there would be insufficient evidence to sustain

any drug convictions on retrial. Accordingly, I would reverse the trial court’s judgment denying

Camann’s suppression motion, vacate Camann’s convictions, and dismiss the drug charges.20 See

Whitehead v. Commonwealth, 278 Va. 300, 315-16 (2009) (citing Jackson v. Commonwealth, 267

Va. 666, 681 (2004)).

II. NO PROBABLE CAUSE TO ARREST FOR POSSESSION OF A CONTROLLED SUBSTANCE

Assuming arguendo that the pre-arrest seizure of Camann was constitutional, I disagree

with the majority’s conclusion that the discovery of the full-size straw and burnt residue on the

foil gave the deputies probable cause to arrest Camann for possession of a controlled substance.

“‘[P]robable cause’ to justify an arrest means facts and circumstances within the officer’s

knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in

believing . . . that the suspect has committed, is committing, or is about to commit” the crime for

20 Camann’s motion to suppress clearly moved the trial court to suppress all evidence obtained from the warrantless seizure and search of his person. Camann did not separately move to suppress the evidence found in his wallet and the rest of the evidence also found on his person. Camann’s first assignment of error on appeal to this Court states:

The trial court erred in denying the Appellant’s motion to suppress the narcotics seized from his wallet, because the police officer’s search of the Defendant’s person and wallet violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Sections 8 and 10 of the Virginia Constitution in that the Defendant’s seizure and search of his person and wallet were not supported by probable cause.

Amended Op. Br. 1-2. Although this assignment of error was inartfully drafted, it sufficed to inform the Commonwealth and this Court that Camann’s appeal challenged the trial court’s ruling denying his motion to suppress. Thus, this assignment of error is not reasonably read as being limited to the suppression of the evidence found in Camann’s wallet. - 33 - which he is arrested. Dodd v. Commonwealth, 50 Va. App. 301, 307 (2007) (second alteration in

original) (quoting Thomas v. Commonwealth, 38 Va. App. 49, 53 (2002)). Deputy Spears

immediately arrested and handcuffed Camann when the foil under Camann’s foot was fully

exposed, revealing a burn mark on the foil and a full-size straw. But neither Deputy Spears nor

Deputy Russell testified to observing any substance on or inside the straw and neither deputy’s

testimony indicated the identity of the burnt residue on the foil. Under the totality of these

circumstances, a reasonably cautious officer would have examined or tested the foil and straw

for the presence of a controlled substance before arresting Camann. However, although Deputy

Spears subsequently tested the powder found in Camann’s wallet to determine whether there was

probable cause to believe that the powder was a controlled substance, the deputies did not test

the residue on the foil for the presence of a controlled substance.21

To lawfully arrest someone for the offense of possession of a controlled substance, “an

officer must have probable cause to believe ‘the defendant was aware of the presence and

character of the drugs and that he intentionally and consciously possessed them.’” Dodd, 50

Va. App. at 307 (quoting Castaneda v. Commonwealth, 7 Va. App. 574, 583 (1989) (en banc)).

Here, the deputies did not have probable cause to believe that a controlled substance was present

on the foil or the straw, let alone probable cause to believe that Camann was aware of the

presence and character of such substance. Thus, even if Deputy Spears’s pre-arrest seizure of

Camann was lawful, the warrantless arrest of Camann without probable cause was unlawful.

Because the drugs were found on Camann when the deputies searched him incident to the

unlawful arrest—in violation of his Fourth Amendment rights—the drugs found on Camann

should have been suppressed. See, e.g., Jefferson v. Commonwealth, 27 Va. App. 1, 19-20

21 The Virginia Department of Forensic Science has approved field tests for law-enforcement officers to use to determine whether there is probable cause to believe that a substance is a controlled substance. See Code § 19.2-188.1(A). - 34 - (1998) (holding that the trial court should have suppressed evidence found in a warrantless

search of the defendant incident to the unlawful arrest of the defendant).

Contrary to the majority’s opinion, the cases cited by the majority do not support the

conclusion that the deputy’s discovery of burnt residue on the foil gave the deputy probable

cause to arrest Camann for possession of a controlled substance. In Carson v. Commonwealth,

12 Va. App. 497 (1991), an officer seized as contraband a one-and-a-half to two-inch straw that

was in plain view on the driver’s seat of a car, between the driver’s legs. Id. at 499. The officer

testified in Carson that from his experience in drug enforcement work, he “recognized the straw

as the type ‘that people use to ingest cocaine through their nose.’” Id. This Court found that

“[t]he uniqueness of the straw’s size distinguishes it from straws one would usually encounter for

legitimate purposes.” Id. at 502. Therefore, the straw in Carson is distinguishable from the

full-size straw at issue here. This Court held in Carson that “[t]he distinctive character of the

straw coupled with the officer’s experience ‘would warrant a man of reasonable caution’ to

believe that the straw might be useful as evidence of a crime.” Id. (emphasis added). Thus, we

held that the officer’s seizure of the straw was lawful. This Court further held in Carson that the

officer’s discovery of white powder residue on the straw gave the officer probable cause to

search the car from which the straw was lawfully seized—not probable cause to arrest the driver

for possession of a controlled substance.

Here, in contrast with Carson, the evidence does not show that the foil and full-size straw

found outside the 7-Eleven store have characteristics that distinguish them from foil and straws

used for legitimate purposes. Foil can be used to cook or wrap food or to extinguish a cigarette,

among myriad other legitimate purposes. Neither Deputy Spears nor Deputy Russell identified

the burnt residue on the foil as a controlled substance. Despite Deputy Spears’s knowledge that

- 35 - foil and straws are commonly used to smoke narcotics, the totality of the circumstances here did

not give the deputies probable cause to believe that Camann possessed a controlled substance.

In Commonwealth v. Ramey, 19 Va. App. 300 (1994), this Court held that an officer had

probable cause to seize “a homemade ‘bong’ used for smoking illegal drugs” that was seen in

plain view protruding from a pack worn by the defendant. Id. at 301. This holding is based on

“the distinctive character of the plastic bottle with foil on top and the highly unlikely event that it

would have a legitimate use.” Id. at 304. Ramey did not address whether the officer had

probable cause to arrest the defendant for possession of a controlled substance.

The majority cites three cases from our sister states in purported support of the majority’s

conclusion that the discovery of burnt residue on the foil gave the deputies probable cause to

arrest Camann for possession of a controlled substance. But the cited authorities do not support

the majority’s opinion. In State v. Rose, 282 P.3d 1087, 1093 (Wash. 2012) (en banc), the court

held that the officer had probable cause to arrest the defendant for possession of a controlled

substance where the officer saw chalky white residue in a glass tube protruding from the

defendant’s bag. Id. at 1088, 1092-93. The officer in Rose testified that based on his training,

the residue was consistent with smoking of some substance. Id. at 1093. The officer also

testified that in his training and experience, he suspected the glass pipe with white residue inside

“were consistent with drug possession” and he suspected the residue was either

methamphetamines or cocaine. Id. In contrast with the officer’s testimony in Rose, the deputies

who testified here did not identify the observed residue as a controlled substance. But in Rose,

the officer’s identification of the residue as a controlled substance was essential to the court’s

holding that the officer had probable cause to arrest the defendant for possession of a controlled

substance. See id. at 1092-93. Therefore, Rose does not support the majority’s opinion.

- 36 - In People v. Edwards, 925 N.E.2d 576, 577 (N.Y. 2010), the court held that the police

had probable cause to arrest the defendant based on the officer’s observation of cocaine residue

on the defendant’s hand. As in Rose, the arresting officer in Edwards identified the observed

residue as a controlled substance, distinguishing Edwards from Camann’s case. Therefore,

Edwards does not support the majority’s opinion.

In Bright v. State, 455 S.E.2d 37, 52 (Ga. 1995), the defendant was arrested for

possession of a controlled substance after the police stopped his car pursuant to a lookout and

“discovered on the window ledge outside the door of the car an object which the officer

recognized to be a crack pipe containing residue of crack cocaine.” In addition to identifying the

pipe as a distinctive crack pipe, the officer testified to his familiarity with crack cocaine residue.

See id. As in Rose and Edwards, the court’s holding that the police had probable cause to arrest

the defendant for possession of a controlled substance was based on the officer’s identification of

the observed residue as a controlled substance. Therefore, like Rose and Edwards, Bright does

not support the majority’s opinion.

It appears that there is no authoritative caselaw supporting the majority’s opinion that the

discovery of unidentified burnt residue on a piece of foil is sufficient to provide probable cause

to arrest a possessor of the foil with possession of a controlled substance. As explained above,

the totality of the circumstances here—including the discovery of burnt residue on the foil under

Camann’s foot—did not provide probable cause to arrest Camann for possession of a controlled

substance. Absent probable cause to arrest Camann, the deputies searched Camann and found

the drugs pursuant to an unlawful arrest, in violation of Camann’s Fourth Amendment rights.

Therefore, the drugs should have been suppressed and Camann’s drug convictions should be

reversed. See Jefferson, 27 Va. App. at 19-20.

- 37 -