Buhrman v. Com.

Present: All the Justices

FRANCES GRACE BUHRMAN
OPINION BY
v. Record No. 070954 JUSTICE LAWRENCE L. KOONTZ, JR.
April 18, 2008
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we determine whether a police officer had

probable cause to arrest an individual for possession of

marijuana after observing hand-rolled cigarettes in the

individual’s vehicle.

BACKGROUND

On June 8, 2005, Officer C. M. Nelson of the Henrico County

Police Department entered a convenience store located in a

“high-drug” area of Henrico County. While in the store, Officer

Nelson noticed Frances Grace Buhrman (Buhrman), a customer in

the store, having some difficulty maintaining her balance while

walking and appearing to fall asleep while operating a frozen

drink machine. When Buhrman left the store and began walking

toward her car, Officer Nelson became concerned that Buhrman

might drive while intoxicated. She then approached Buhrman and

asked for her identification.

Buhrman immediately complied with Officer Nelson’s request,

opening the car door in order to retrieve her identification.

At this time, Officer Nelson noticed hand-rolled cigarettes in

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the interior door handle. Based upon her training and

experience, a “faint odor,” and the “coloration” of the

cigarettes, Officer Nelson believed these cigarettes to be

marijuana cigarettes, and immediately arrested Buhrman for

possession of marijuana.

A search incident to the arrest yielded cocaine, heroin,

and marijuana in both Buhrman’s car and purse. Thereafter,

Buhrman was indicted by a Henrico County grand jury for

possession of cocaine, possession of heroin, and possession of

marijuana, second offense. Buhrman filed a motion to suppress

the physical evidence, which was denied by the trial court. In

a bench trial, Buhrman subsequently entered a conditional guilty

plea on all three offenses and was sentenced to a period of

twenty years and twelve months incarceration, with all but six

months suspended.

Buhrman appealed her convictions to the Court of Appeals of

Virginia, asserting that the trial court erred in denying her

motion to suppress the physical evidence because her arrest was

not based upon probable cause. One judge of the Court of

Appeals denied Buhrman’s petition for appeal in a per curiam

order dated February 21, 2007. Buhrman v. Commonwealth, Record

No. 2105-06-2 (Feb. 21, 2007). Buhrman’s petition for appeal

was again denied by a three-judge panel of the Court of Appeals.

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Buhrman v. Commonwealth, Record No. 2105-06-2 (April 26, 2007).

We subsequently awarded Buhrman this appeal.

DISCUSSION

On appeal, Buhrman contends that Officer Nelson lacked the

requisite probable cause under the Fourth Amendment to the

United States Constitution to make an arrest and, thus, that

evidence of the cocaine, heroin, and marijuana seized by Officer

Nelson should have been suppressed as the fruit of an

unconstitutional search. See Wong Sun v. United States, 371

U.S. 471, 485 (1963). This Court gives deference to the

historical facts determined by the trial court, but we apply a

de novo standard of review when considering whether the legal

standard of probable cause was correctly applied by the trial

court to the historical facts. Brown v. Commonwealth, 270 Va.

414, 419, 620 S.E.2d 760, 762 (2005); Ornelas v. United States,

517 U.S. 690, 699 (1996).

The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things

to be seized.” What the Fourth Amendment prohibits “is not all

searches and seizures, but unreasonable searches and seizures.”

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Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Elkins v. United

States, 364 U.S. 206, 222 (1960)) (emphasis added).

A search is considered reasonable when it is either

supported by a warrant, or when an exception to the warrant

requirement has been met. “One of the most frequently utilized

exceptions to the warrant requirement is the search incident to

an arrest.” 1 Joseph G. Cook, Constitutional Rights of the

Accused § 3:22, at 494 (2d ed. 1985 & Supp. 1995). See also

Chimel v. California, 395 U.S. 752 (1969). Pertinent to the

present case, under this exception an officer who makes an

arrest supported by probable cause may search the entire

passenger compartment of an arrestee’s nearby automobile.

Thornton v. United States, 541 U.S. 615, 623 (2004).

In the present case, Buhrman does not challenge the scope

of the search conducted by Officer Nelson. The sole issue

raised is whether Officer Nelson had probable cause to arrest

Buhrman and, thus, perform the search incident to arrest. We

turn now to determine that issue.

In Taylor v. Commonwealth, 222 Va. 816, 284 S.E.2d 833

(1981), we held that “probable cause exists when the facts and

circumstances within the officer’s knowledge, and of which he

has reasonably trustworthy information, alone are sufficient to

warrant a person of reasonable caution to believe that an

offense has been or is being committed.” Id. at 820, 284 S.E.2d

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at 836 (citations omitted). Therefore, in determining whether

an officer had sufficient probable cause to make an arrest,

courts should focus upon “what the totality of the circumstances

meant to police officers trained in analyzing the observed

conduct for purposes of crime control.” Hollis v. Commonwealth,

216 Va. 874, 877, 223 S.E.2d 887, 889 (1976).

In Brown, we considered whether an officer had probable

cause to make an arrest in circumstances factually similar to

those presented in this case. In that case, a police officer

patrolling a high-crime area observed the defendant asleep in

the passenger seat of a vehicle while holding a partially-

burned, hand-rolled cigarette. Id. at 417, 620 S.E.2d at 761.

Based solely upon this observation, the officer woke the

defendant, asked him to step out of the vehicle, and arrested

him. Id. A subsequent search of the defendant’s person

produced evidence containing traces of cocaine and heroin. Id.

The defendant was ultimately charged with, and convicted of

possession of both substances. Id.

This Court reversed Brown’s convictions, holding that the

officer did not have probable cause to arrest and search the

defendant. Id. at 422, 620 S.E.2d at 764. In doing so, we

observed that probable cause cannot be established “solely on

the observation of material which can be used for legitimate

purposes, even though the experience of an officer indicates

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that such material is often used for illegitimate purposes.” Id.

at 420-21, 620 S.E.2d at 763. Rather, “such observations must

be combined with some other circumstance indicating [the

suspected] criminal activity.” Id. at 421, 620 S.E.2d at 763.

We find no meaningful distinction between the circumstances

presented by this case and those at issue in Brown. Officer

Nelson conceded that her observation of the hand-rolled

cigarettes was the basis for her belief that she had probable

cause to arrest Buhrman for possession of marijuana. To

distinguish Brown, the Commonwealth notes that Officer Nelson

also observed Buhrman acting “intoxicated” and “suspicious.”

Evidence of intoxication and vaguely “suspicious” actions,

without more, does not suffice to indicate that hand-rolled

cigarette materials are being used for the illegitimate purpose

of smoking marijuana, as opposed to the legitimate purpose of

smoking tobacco. Furthermore, behaving in an intoxicated and

suspicious manner is not so overwhelmingly correlated with the

use of marijuana so as to exclude the reasonable inference that

such behaviors are the result of the use of a legal substance

such as alcohol.

Furthermore, no other circumstances corroborated the

officer’s belief that the hand-rolled cigarettes were being used

for an illegitimate purpose. Officer Nelson did not testify

that Buhrman tried to hide the hand-rolled cigarettes, acted

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elusively, or appeared nervous – all of which could support a

reasonable belief of criminal activity. Cf. Brown, 270 Va. at

419, 620 S.E.2d at 762 (finding that the “dispersal” at the

sight of police “could indicate criminal activity under some

circumstances”); Hollis, 216 Va. at 877, 223 S.E.2d at 889

(finding probable cause where the defendant took furtive actions

to hide hand-rolled cigarettes from the police); United States

v. Mendenhall, 446 U.S. 544, 563-64 (1980) (indicating that

nervous behavior in the presence of law enforcement officers may

be a factor in determining probable cause). Likewise, the

Commonwealth’s reliance upon Officer Nelson detecting an

unidentified “faint odor” is similarly insufficient to create

probable cause to arrest an individual for possession of

marijuana in this case. The officer did not testify that the

odor which she smelled was indicative of marijuana and never

identified the source of the odor. Additionally, Officer Nelson

did not testify to any distinction she may have drawn between

the “coloration” of the hand-rolled cigarettes here and what she

would have expected to observe in cigarettes that contain

tobacco.

As the Supreme Court remarked in Terry v. Ohio, “[n]o right

is held more sacred, or is more carefully guarded, by the common

law, than the right of every individual to the possession and

control of his own person, free from all restraint or

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interference of others, unless by clear and unquestionable

authority of law.” 392 U.S. at 9 (citing Union Pac. R. Co. v.

Botsford, 141 U.S. 250, 251 (1891)). Yet, “[b]ecause the

strongest advocates of Fourth Amendment rights are frequently

criminals, it is easy to forget that our interpretations of such

rights apply to the innocent and the guilty alike.” United

States v. Sokolow, 490 U.S. 1, 11 (1989) (Marshall, J.,

dissenting). Though we understand the daily challenges faced by

members of the law enforcement community, courts must remain

vigilant to “not allow our zeal for effective law enforcement to

blind us to the peril to our free society that lies in [our]

disregard of the protections afforded by the Fourth Amendment.”

Florida v. Royer, 460 U.S. 491, 513 (1983) (Brennan, J.

concurring).

CONCLUSION

We hold that Officer Nelson lacked probable cause, under

the totality of the circumstances, to arrest Buhrman for

possession of marijuana. Thus, the trial court erred in denying

Buhrman’s motion to suppress the evidence obtained as a result

of the search incident to that arrest. Because the evidence

seized from Buhrman should have been suppressed, there would be

insufficient evidence to sustain Buhrman’s convictions for

possession of cocaine, heroin, and marijuana in any retrial.

Accordingly, we will reverse the judgment of the Court of

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Appeals, vacate Buhrman’s convictions, and dismiss the

indictments against her.

Reversed, vacated, and dismissed.

JUSTICE LEMONS, with whom JUSTICE KINSER and JUSTICE GOODWYN
join, dissenting.

The majority states “[w]e find no meaningful distinction

between the circumstances presented by this case and those at

issue in Brown.” I do find meaningful distinctions and

respectfully dissent.

Officer Nelson observed Buhrman in a convenience store and

reasonably believed that she was intoxicated. Buhrman was

having difficulty maintaining her balance and appeared to fall

asleep while operating a drink machine in the store. Officer

Nelson was concerned that Buhrman might drive from the store in

an intoxicated state and approached her in the parking lot and

asked for identification. When Buhrman opened her car door to

get her identification, Officer Nelson saw hand-rolled

cigarettes on the interior of the “door handle.” Based upon her

training and experience, the “coloration” of the cigarettes, the

hand-rolled nature of the cigarettes, the lack of any smell of

alcoholic beverages, the “faint odor” detected upon proximity to

the cigarettes, and Buhrman’s appearance of intoxication,

Officer Nelson reasonably concluded that the hand-rolled

cigarettes contained marijuana.

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 In this case, it is important to remember that we are not

dealing with certainties or even a standard requiring proof

“beyond a reasonable doubt,” rather, we must consider

probabilities.

The legal standard of probable cause, as the
term suggests, relates to probabilities that
are based upon the factual and practical
considerations in everyday life as perceived by
reasonable and prudent persons. The presence
or absence of probable cause is not to be
examined from the perspective of a legal
technician. Rather, probable cause exists when
the facts and circumstances within the
officer’s knowledge, and of which he has
reasonably trustworthy information, alone are
sufficient to warrant a person of reasonable
caution to believe that an offense has been or
is being committed. Draper v. United States,
358 U.S. 307, 313 (1959); Schaum v.
Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73,
75 (1975). In order to ascertain whether
probable cause exists, courts will focus upon
“what the totality of the circumstances meant
to police officers trained in analyzing the
observed conduct for purposes of crime
control.” Hollis v. Commonwealth, 216 Va. 874,
877, 223 S.E.2d 887, 889 (1976).

Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836

(1981).

The error of the majority is vividly illustrated by the

language used. The majority states, “behaving in an intoxicated

and suspicious manner is not so overwhelmingly correlated with

the use of marijuana so as to exclude the reasonable inference

that such behaviors are the result of the use of a legal

substance such as alcohol.”

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 On appellate review, we are to consider the totality of the

circumstances and not substitute our judgment for that of a

trained police officer. Here, the officer observed behavior

reasonably associated with intoxication, the absence of alcohol

and the presence of hand-rolled cigarettes with peculiar color

and odor.

The majority employs language that reveals its use of an

incorrect standard. Requiring the Commonwealth to “exclude the

reasonable inference” invokes language we use to measure the

sufficiency of the evidence for the determination of guilt or

innocence beyond a reasonable doubt. See Commonwealth v.

Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). But the

standard here is probable cause.

This case has far more evidence to support Officer Nelson’s

determination of probable cause to arrest Buhrman than was

present in Brown. I would affirm the Order of the Court of

Appeals affirming the judgment of the trial court.

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