probable cause standard in Virginia

2024The probable cause standard is a “‘practical, nontechnical conception’ that deals with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Doscoli v. Commonwealth, 66 Va. App. 419, 427 (2016) (quoting Maryland v. Pringle, 540 U.S. 366, 370 (2003)). “[I]t deals with probabilities and depends on the totality of the circumstances.” Id. (quoting Pringle, 540 U.S. at 370-71 ).

2024The probable cause standard is a “‘practical, nontechnical conception’ that deals with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Doscoli v. Commonwealth, 66 Va. App. 419, 427 (2016) (quoting Maryland v. Pringle, 540 U.S. 366, 370 (2003)). “[I]t deals with probabilities and depends on the totality of the circumstances.” Id. (quoting Pringle, 540 U.S. at 370-71 ).

2024See Boyd v. Commonwealth, 12 Va. App. 179, 185 (1991) (“The probable cause inquiry conducted by the magistrate entails ‘a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))); see also Harvey v. Commonwealth, 76 Va. App. 436 , 462 (2023) (“Although an appellate court reviews the application of legal principles such as probable cause de novo, the court must ‘grant “great defer

2018See Gates, 462 U.S. at 231-32 (describing the probable cause standard as not dealing with “hard certainties, but with probabilities . . . . [T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” (emphasis added) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981))).

2023The probable cause inquiry demands a review of the “totality of the circumstances.” Brown v. Commonwealth, 270 Va. 414, 419 (2005).

2008See Cost v. Commonwealth, 275 Va. 246 , 251, 657 S.E.2d 505 , 507 (2008) (totality of the circumstances, in determining whether an officer *150 has sufficient probable cause, includes "a consideration of the officer's knowledge, training and experience"); Brown v. Commonwealth, 270 Va. 414 , 420, 620 S.E.2d 760 , 763 (2005) ("We have considered a number of instances in which an officer's expertise and training made his observation of an item suspected to contain contraband a significant factor in the probable cause analysis."); Harris v. Commonwealth, 241 Va. 146 , 149, 400 S.E.2d 191 , 193 (1

2010Consequently, the probable cause standard does not “demand any showing that such a belief be correct or more likely true than false.” Slayton v. Commonwealth, 41 Va. App. 101, 888-89 (D.N.D. 2003) (finding the observation by officers of a crack pipe in plain view during an initial traffic violation detention supplied probable cause to search the vehicle). 5 An officer may confiscate contraband without any probable cause implicating the criminality of the possessor.

2007The probable cause test, however, is not calibrated to “deal with hard certainties, but with probabilities.” Id. (citation omitted).

2024“On appeal, a ‘defendant’s claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo.’” Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth, 275 Va. 246, 250 (2008)). -3- Drake argues that the police lacked probable cause to search his vehicle, test the contents of the dropped syringe, and arrest him after the EMT determined that Drake was not suffering from a medical emergency.1 He also contends that the court erred “by considering the role the color of the substance in the syringe played in the

2023Here, it is clear that Jones, who was two miles away from 65 Riverside Drive, was similarly not in the “immediate vicinity of the premises to be searched.” Therefore, this exception to the probable cause requirement does not apply. -6- Bunch v. Commonwealth, 51 Va. App. 491, 495 (2008) (first quoting Cost v. Commonwealth, 275 Va. 246, 251 (2008); and then quoting Malbrough v. Commonwealth, 275 Va. 163, 168 (2008)).

2018See Gates, 462 U.S. at 231-32 (describing the probable cause standard as not dealing with “hard certainties, but with probabilities . . . . [T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” (emphasis added) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981))).

2000Moreover, [the Supreme Court of the United States'] observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding "particularized suspicion," is equally applicable to the probable-cause requirement: "The process does not deal with hard certainties, but with probabilities.

2014Taylor v. Commonwealth, 222 Va. 816, 820-21 , 284 S.E.2d 833, 836 (1981) (other citation omitted); see also Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.”). -4- In claiming that the police lacked probable cause to search his person, appellant premises his entire argument on Whitehead v. Commonwealth, 278 Va. 300 , 683 S.E.2d 299 (2009).

2014Taylor v. Commonwealth, 222 Va. 816, 820-21 , 284 S.E.2d 833, 836 (1981) (other citation omitted); see also Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.”). -4- In claiming that the police lacked probable cause to search his person, appellant premises his entire argument on Whitehead v. Commonwealth, 278 Va. 300 , 683 S.E.2d 299 (2009).

2004“The probable cause standard does not require actual knowledge ‘. . . [Only] the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. . . .’” Wescott v. Commonwealth, 216 Va. 123, 126 , 216 S.E.2d 60, 63 (1975) (quoting Spinelli v. Commonwealth, 393 U.S. 410, 419 (1969)).

2004“The probable cause standard does not require actual knowledge ‘. . . [Only] the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. . . .’” Wescott v. Commonwealth, 216 Va. 123, 126 , 216 S.E.2d 60, 63 (1975) (quoting Spinelli v. Commonwealth, 393 U.S. 410, 419 (1969)).

2025Under the Fourth Amendment’s longstanding automobile exception, law enforcement officers, “[b]efore making an arrest and without obtaining a search warrant, . . . may search a vehicle when they have probable cause to believe that the vehicle contains evidence of a crime.” Id. at ___; see Curley v. Commonwealth, 295 Va. 616, 621 (2018).

2022Consequently, caselaw from a number of other jurisdictions holds that possession of marijuana, even in a state that has made simple possession of a small amount of marijuana completely legal, certainly factors into the probable cause analysis to determine under the totality of the circumstances whether law enforcement in those states may search vehicles for additional contraband. 10 There are two exceptions to the rule that it was unlawful to possess marijuana at that time, and Code § 18.2-250.1(A) made possession unlawful “unless the substance was obtained directly from, or pursuant to, a val

2024See Boyd v. Commonwealth, 12 Va. App. 179, 185 (1991) (“The probable cause inquiry conducted by the magistrate entails ‘a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))); see also Harvey v. Commonwealth, 76 Va. App. 436 , 462 (2023) (“Although an appellate court reviews the application of legal principles such as probable cause de novo, the court must ‘grant “great defer

2001ANALYSIS The Search Warrant "The fourth amendment requires that a warrant to search shall issue only on probable cause supported by oath or affirmation." Boyd v. Commonwealth, 12 Va. App. 179, 185 , 402 S.E.2d 914, 918 (1991). -3- The probable cause inquiry conducted by the magistrate entails "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Appellate review of a magistrate's probable cause determination is deferential in na

2004“The probable cause standard does not require actual knowledge ‘. . . [Only] the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. . . .’” Wescott v. Commonwealth, 216 Va. 123, 126 , 216 S.E.2d 60, 63 (1975) (quoting Spinelli v. Commonwealth, 393 U.S. 410, 419 (1969)).

1992"The probable cause standard does not require actual knowledge. `Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause....'" Westcott v. Commonwealth, 216 Va. 123, 126 , 216 S.E.2d 60, 63 (1975) (quoting Spinelli v. United States, 393 U.S. 410, 419 , 89 S.Ct. 584, 590 , 21 L.Ed.2d 637 (1969)).

2024Comm’n of Va., 416 U.S. 783, 795 (1974)).

2022Comm’n of Va., 416 U.S. 783, 795 (1974)).

2017See, e.g., McGhee v. Commonwealth, 280 Va. 620, 624 , 701 S.E.2d 58, 60 (2010) (explaining the probable cause standard). - 11 - circumstances to allow the officers to confirm or dispel the suspicion that the appellant had operated the vehicle while under the influence of alcohol.6 Applying the standard of objective reasonableness to the totality of the circumstances, the evidence supports the conclusion that the officers had, at the very least, reasonable suspicion to continue the investigatory detention up to the point of the arrest.

2017See, e.g., McGhee v. Commonwealth, 280 Va. 620, 624 , 701 S.E.2d 58, 60 (2010) (explaining the probable cause standard). - 11 - circumstances to allow the officers to confirm or dispel the suspicion that the appellant had operated the vehicle while under the influence of alcohol.6 Applying the standard of objective reasonableness to the totality of the circumstances, the evidence supports the conclusion that the officers had, at the very least, reasonable suspicion to continue the investigatory detention up to the point of the arrest.

2016“Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, ‘anticipatory.’ ” Grubbs, 547 U.S. at 95 , 126 S.Ct. at 1499 (emphasis in original). “[W]hen an anticipatory warrant is issued, ‘the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.’ ” Id. at 96 , 126 S.Ct. at 1499 (quoting United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989)). *633 “Most antici

2016“Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, ‘anticipatory.’ ” Grubbs, 547 U.S. at 95 , 126 S.Ct. at 1499 (emphasis in original). “[W]hen an anticipatory warrant is issued, ‘the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.’ ” Id. at 96 , 126 S.Ct. at 1499 (quoting United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989)). *633 “Most antici

2016“Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, ‘anticipatory.’ ” Grubbs, 547 U.S. at 95 , 126 S.Ct. at 1499 (emphasis in original). “[W]hen an anticipatory warrant is issued, ‘the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.’ ” Id. at 96 , 126 S.Ct. at 1499 (quoting United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989)). *633 “Most antici

2016“Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, ‘anticipatory.’” Grubbs, 547 U.S. at 95 (emphasis in original). “[W]hen an anticipatory warrant is issued, ‘the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.’” Id. at 96 (quoting United States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989)).

1998To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning.” Id. at 282 (Judge Benton, dissenting) (quoting United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985)).

1991United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985).

1993In reviewing the magistrate’s probable cause determination, we must decide ‘ ‘ ‘whether the evidence viewed as a whole provided a “substantial basis” for the Magistrate’s finding of probable cause.’ ” Id. at 185-86, 402 S.E.2d at 918 (quoting Massachusetts v. Upton, 466 U.S. 727, 732-33 (1984)).

1991Appellate review of a magistrate’s probable cause determination is deferential in nature, Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87 (1987); and a reviewing court does not conduct “a de novo probable cause determination.” Massachusetts v. Upton, 466 U.S. 727, 733 (1984).

2026Consequently, in certain circumstances, “courts have found counsel’s detailed proffer -5- about a client’s mental state sufficient to satisfy the probable cause standard.” Id. (emphasis added).

2026Therefore, “courts have found counsel’s detailed proffer about a client’s mental state sufficient to satisfy the probable cause standard.” Id.

2018At oral argument, the Commonwealth characterized the probable cause standard as “a low bar.” While probable cause is certainly a lesser standard than the burden of proof required for a conviction, it nevertheless requires “a reasonable ground for belief” that a suspect is involved in criminal activity (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).

2002Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a “practical, nontechnical conception.” Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949).

2024Jones v. Commonwealth, 279 Va. 52, 58-59 (2010). -8- “ability . . . to operate safely a motor vehicle.”4 Hogle, 75 Va. App. at 753 (quoting Thurston, 15 Va. App. at 483 ).

2022Consequently, caselaw from a number of other jurisdictions holds that possession of marijuana, even in a state that has made simple possession of a small amount of marijuana completely legal, certainly factors into the probable cause analysis to determine under the totality of the circumstances whether law enforcement in those states may search vehicles for additional contraband. 10 There are two exceptions to the rule that it was unlawful to possess marijuana at that time, and Code § 18.2-250.1(A) made possession unlawful “unless the substance was obtained directly from, or pursuant to, a val

2023Conway v. Commonwealth, 12 Va. App. 711, 721 (1991) (en banc) (“[T]o lawfully seize an item under the plain view exception to the warrant requirement, the officer must have probable cause to believe that the item in question is evidence of a crime or contraband.” (citing Arizona v. Hicks, 480 U.S. 321, 323, 326-27 (1987))).

1987In Arizona v. Hicks, 480 U.S._, 107 S.Ct. 1149 (1987), however, a divided court proclaimed a rule of universal application: in order to invoke the “plain view” doctrine, the police must have had probable cause to believe that the evidence seized was a seizable item, i.e., contraband, the fruit or tools of a crime, or other evidence of a crime. 1 Although the Brown Court eschewed a per se rule, in upholding the warrantless seizure in the case before it, the Court applied a probable cause standard defined as follows: *366 [Pjrobable cause is a flexible, common-sense standard.

2022Under the probable cause standard, the cumulative effect of multiple, relevant factors governs.” Id. (citation omitted).

2021See id.

2022Consequently, caselaw from a number of other jurisdictions holds that possession of marijuana, even in a state that has made simple possession of a small amount of marijuana completely legal, certainly factors into the probable cause analysis to determine under the totality of the circumstances whether law enforcement in those states may search vehicles for additional contraband. 10 There are two exceptions to the rule that it was unlawful to possess marijuana at that time, and Code § 18.2-250.1(A) made possession unlawful “unless the substance was obtained directly from, or pursuant to, a val

2018Jones v. Commonwealth , 277 Va. 171 , 177-78, 670 S.E.2d 727 , 731 (2009) ; McCain v. Commonwealth , 275 Va. 546 , 551-52, 659 S.E.2d 512 , 515 (2008).

2014In that case, the Supreme Court held that this information “combined to provide the necessary probable cause to search the car without obtaining a warrant.” Id. at 877 , 223 S.E.2d at 889 (emphasis added) (not considering an anonymous informant’s tip in the probable cause analysis because a more stringent informant reliability test applied prior to the United States Supreme Court’s decision in Gates).

2014In that case, the Supreme Court held that this information “combined to provide the necessary probable cause to search the car without obtaining a warrant.” Id. at 877 , 223 S.E.2d at 889 (emphasis added) (not considering an anonymous informant’s tip in the probable cause analysis because a more stringent informant reliability test applied prior to the United States Supreme Court’s decision in Gates).

2024“On appeal, a ‘defendant’s claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that we review de novo.’” Cole v. Commonwealth, 294 Va. 342, 354 (2017) (quoting Cost v. Commonwealth, 275 Va. 246, 250 (2008)). -3- Drake argues that the police lacked probable cause to search his vehicle, test the contents of the dropped syringe, and arrest him after the EMT determined that Drake was not suffering from a medical emergency.1 He also contends that the court erred “by considering the role the color of the substance in the syringe played in the

2024See Boyd v. Commonwealth, 12 Va. App. 179, 185 (1991) (“The probable cause inquiry conducted by the magistrate entails ‘a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))); see also Harvey v. Commonwealth, 76 Va. App. 436 , 462 (2023) (“Although an appellate court reviews the application of legal principles such as probable cause de novo, the court must ‘grant “great defer