COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Decker Argued at Norfolk, Virginia

DEREK LAMONT PORTER MEMORANDUM OPINION * BY v. Record No . 0631-16-1 JUDGE MARLA GRAFF DECKER MAY 23, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF T HE CITY OF VIRGINIA BEACH Leslie L. Lilley, Judge Bassel Khalaf, Assistant Public Defender, for appellant. Victoria Johnson, Assistant Attorney General ( Mark R. Herring , Attorney General; Donald E. Je ffrey, III, Senior Assistant Atto rney General, on brief), for appellee.

Derek Lamont Porter appeals his conviction for possessing a co ntrolled substance with the intent to distribute in violation of Code § 18.2-248(C). H e contends that his medicine bottle was searched and that the searc h and his subsequent detention w ere unreasonable under the Fourth Amendment of the Constitution of the United States. He concludes that, consequently, the circuit court should have granted his motion to suppress ev idence. We hold that the circuit court did not err in denying the motion to suppress. According ly, we affirm the conviction.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. BACKGROUND 1 Around 10:00 p.m. on March 20, 2014, Offi cer Spencer Parrish, o f the Virginia Beach Police Department, was on patrol i n a “high narcotic[s] area.” He had participated in narcotics investigations “several” times in that area, including serving two search warrants. While on patrol that night, Parrish observed the appellant in the driver ’s seat of a parked car with another man in the front passenger seat. The officer parked his marke d police car on the opposite side o f the street from the appellant, twenty-five or thir ty feet away from him. Officer P arrish used his vehicle’s spotlight to illuminate the appellant’s c ar because it was dark in the ar ea. 2 He was alone, and his weapon remained holstered. Parrish wave d at the occupants in the car “as if to say hi” as he approached the driver’s door on foot. The a ppellant, who appeared “extrem ely nervous,” rolled down his window. Parrish asked to see the appellan t’s identification, and the ap pellant provided him with his driver’s license. As the two c onversed, the officer saw two “p ill bottles” in the appellant’s lap. Parrish asked to “see” the pill bottles, and the appellant hand ed them to him. The labels on the bottles identified prescriptions i n the appellant’s name. One bottle was labeled as morphine and had a sticker with the words “controlled substance.” Officer P arrish noticed that the morphine label indicated that the pres cription had been filled with nine ty pills “seven days prior” and that there were only two pills in t he bottle. The officer asked the appellant the amount of his daily

1 In ruling on the propriety of acircuit court’s decision on a motion to suppress, this Court views the evidence in the light most favorable to the par ty who prevailed below, in this case the Commonwealth. E.g., Bra nham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012).

2 Officer Parrish explained that he used the spotlight as he dro ve through the dark trailer park and left it on after he stopped.- 3 - dose. The appellant replied “tw o to three pills a day.” Based on this response, Parrish calculated that the bottle should be missi ng only twenty-one pills, not ei ghty-eight. At that point, Officer Parrish r equested assistance, which arri ved a few minutes later. During the interaction that followed, the appellant admitted to selling the missing morphine pills. The appellant made a motion to s uppress the evidence. In suppo rt of this motion, he argued that Officer Parrish eff ected a seizure when the officer approached him and that he did not consent to the conversation or the inspection of the pill b ottles. The appellant further contended that once Parrish obtai ned the appellant ’s identifica tion and the pill bottles, the officer had no reasonable articulable suspicion of criminal activity. Specifically, he suggested that when the officer discovered that the pill bottles belonged to the ap pellant, he should have stopped the investigation rather than searching the morphine bottle because any reasonable suspicion no longer existed. The circuit court denied the m otion. The appellant entered a c onditional guilty plea, preserving his right to appeal t he court’s denial of his motion to suppress. The court accepted the plea, found the appellant guilty, and sentenced him to five yea rs of imprisonment.
II. ANALYSIS The appellant argues that the circuit court erred in denying h is motion to suppress the evidence because Officer Parris h did not have legal justificati on to “search” the morphine medicine bottle or to detain him after the officer discovered that the pill bottle belonged to him. 3 On appeal of the denial of a motion to suppress evidence, the appellant has the burden to show that the circuit court’s ruling constituted reversible err or. Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008). “‘Ultimate questions of reasonable suspicion and probable cause to make a warran tless search’ involve questions of both law and fact and are

3 The appellant does not challenge the consensual nature of the initial encounter.- 4 - reviewed de novo on appeal.” McGee v. Com monwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ) (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)). This Court must “independently determine whe ther the manner in which the e vidence was obtained meets the requirements of the Fourt h Amendment.” McCain v. Commonwea lth, 275 Va. 546, 552, 659 S.E.2d 512, 515 (2008). In doing so, how ever, the Court is “bo und by the trial court’s factual findings unless those findings a re plainly wrong or unsupported by the evidence.” Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008). In add ition, “we give due weight to the inferences drawn from those facts by resident judges and lo cal law enforcement officers.” McGee, 25 Va. App. at 198, 487 S.E.2d at 261. A. The Scope of Consent and Rule 5A:18 The appellant argues that alt hough he consented to the officer ’s request to “see” the pill bottles, Officer Parrish violate d his Fourth Amendment rights b y searching his medicine bottle labeled morphine. The Commonwea lth responds that the appellant did not argue below that Parrish exceeded the scope of the appellant’s consent and, ther efore, the issue is barred. The appellant is correct that a consensual search must be limi ted to “the scope of the consent given.” Grinton v. Commonwealth, 14 Va. App. 846, 850, 419 S.E.2d 860, 862 (1992). However, at no point during the h earing on the motion to suppre ss did he argue t o the circuit court that Parrish’s “search” of the medicine bottle exceeded t he scope of his consent. Instead, the appellant argued that his en counter with Officer Parrish wa s not consensual because the “blinding” police spotlight c onstituted a show of authority, re ndering the encounter a seizure. He further contended that after O fficer Parrish obtained his ident ification and matched his name to that on the pill bottle labels, the officer no longer had reaso nable suspicion of criminal activity and the detention s hould have ended.- 5 - Under Rule 5A:18, “[n]o ruli ng of the trial court . . . will b e considered as a basis for reversal unless an objection was s tated with reasonable certain ty at the time of the ruling, except for good cause shown or to enable th e Court of Appeals to attai n the ends of justice.” Interpreting this rule, the Cour t has held that “[m]aking one s pecific argument on an issue does not preserve a separate legal poi nt on the same issue for revie w.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004). The purpose of Rule 5A:18 is to al low both the circuit court and the opposing party “the opportunity to intelligently address, exami ne, and resolve issues in the trial court” in order to avoid unnecessary appeals and retrials. See Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004), aff’d on other g rounds, 269 Va. 3, 607 S.E.2d 119 (2005). The appellant’s failure to make the “scope of consent” argumen t relating to the pill bottle below deprived the Commonwealt h of the chance to address it and the circuit court of the opportunity to rule on this issu e. See Vaughn v. Commonwealth, 279 Va. 20, 21, 688 S.E.2d 283, 284 (2010) (holding that this C ourt erred by addressing th e implied consent doctrine because the defendant had not raised that particular argument a t trial); Redmond v. Commonwealth, 57 Va. App. 254, 259 n.2, 701 S.E.2d 81, 83 n.2 ( 2010) (holding that the argument that the officers exceeded the scope of any consent wa s procedurally barred). 4 Additionally, at no point has the a ppellant assert ed that the e nds of justice exception to Rule 5A:18 applies to permit this Cour t to address this challenge, and we do not consider that limited exception to the rule sua sponte . See Edwards, 41 Va. App. at 761, 589 S.E.2d at 448; see also Jones v. Commonwealth, 293 Va. 29, 39 n.5, 795 S.E.2d 705, 710 n.5 (2017) (declining to apply

4 Vaughn, 279 Va. at 21, 688 S.E.2d at 284, and Redmond, 57 Va. App. at 259 n.2, 701 S.E.2d at 84 n.2, involved a previ ous version of Rule 5A:18. T he 2010 amendment to Rule 5A:18 does not affect the applicab ility of these cases or the r esult reached here.- 6 - sua sponte the “ends of justice” excepti on to Rule 5:25, the Supreme Court of Virginia counterpart to Rule 5A:18)

. Further, the appellant does not raise the good cause exceptio n to Rule 5A:18, and a review of the record does not provide any rea son to invoke that exception here. See Andrews v. Commonwealth, 37 Va. App. 479, 494, 559 S .E.2d 401, 409 (2002). Consequently, we conclude that Rule 5A:18 bars our consideratio n of this assignment of error. 5
B. The Detention In a separate assignment of e rror, the appellant argues that once the officer “looked at the refill date on the bottle and looked inside,” the consensual en counter, which included handing the officer the pill bottles, turne d into an unlawful seizure. He contends that at t hat point, Officer Parrish seized him without suffici ent justification when he searched inside his medicine bottle, questioned him, and requested backup. The Fourth Amendment protects people from unreasonable searches and seizures. E.g., Jones v. Commonwealth, 279 Va. 521, 527, 690 S.E.2d 95, 99 (201 0). It is well es tablished that warrantless searches and seizure s are “presumptively unreasonab le.” Harris v. Commonwealth, 241 Va. 146, 152, 400 S.E.2d 191, 195 (1991). Nevertheless, “c ourts recognize exceptions to this general rule in several c ircumstances, including when a pa rty voluntarily consents to the search.” Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 9 10, 913 (2008). Police are free under the Fourt h Amendment to engage in consens ual encounters with individuals. See, e.g., Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012). A consensual contact “becomes aseizure ‘[o]nly when the office r, by means of physical force or

5 In light of this holding, we do notconsider the Commonwealth’ s argument that the evidence supports a finding that the officer could see the pill s through the bottle and, therefore, the number of pills were in plain view. Likewise, we do not ad dress the Commonwealth’s alternative contention that the appellant’s handing Officer Par rish the pill bottle in response to his request to “see” it “could reasonably be understood to incl ude” consent for him to look in the bottle. See Edwards v. Commonwealth, 38 Va. App. 823, 831, 568 S.E.2d 454, 458 (2002).- 7 - show of authority, has in some wa y restrained the liberty of a citizen.’” Malbrough, 275 Va. at 169, 655 S.E.2d at 4 (alteration in o riginal) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). The Commonwealth does not contest the appellant’s characterizat ion that the encounter became a seizure after Parrish r ealized that the number of pill s in the bottle was different than the quantity suggested by the date printed on the label. See, e.g. , Jones, 279 Va. at 528-29, 690 S.E.2d at 99-100 (discussing factor s relevant to determining wh ether a seizure occurred). Instead, the Commonwealth argues that at that point in the enco unter, the officer had a reasonable articulable suspicion that criminal activity was afo ot which supported an investigatory detent ion. We agree. A police officer may justify a br ief detention to investigate i f he has a “reasonable, articulable suspicion” of unlawful conduct. Jones v. Commonwea lth, 279 Va. 665, 673, 691 S.E.2d 801, 805 (2010). More specifi cally, “if there are artic ulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped . . . briefly while attempting to obtain additi onal information.” Sidney v. Commonwealth, 280 Va. 517, 524, 702 S.E.2d 124, 128-29 (2010) (quoting Hayes v. Florida, 4 70 U.S. 811, 816 (1985)). The purpose of an investigatory deten tion is “to permit an officer with reasonable suspicion of criminal activity to quickly confir m or dispel that suspicion.” Davis v. Commonwealth, 35 Va. App. 533, 539, 546 S.E.2d 252, 255 (2001). “There are no bright line rules to follow when determining whet her a reasonable and articulable suspicion ex ists . . . .” Hoye v. Commonwealth, 18 Va. App. 132, 134-35, 442 S.E.2d 404, 406 (1994). The analysis is driv en by the facts in the ca se, but the law dictates the parameters. “A reasonable susp icion is more than an ‘unparticu larized suspicion or “hunch.”’” Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923 (20 00) (quoting Terry v. Ohio,- 8 - 392 U.S. 1, 27 (1968)). However, “[t ]he likelihood of criminal ity ‘need not rise to the level required for probable cause, a nd it falls considerably short of satisfying a preponderance of the evidence standard’ applicable i n other contexts.” Raab v. Comm onwealth, 50 Va. App. 577, 581, 652 S.E.2d 144, 146 (2007) ( en banc ) (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). The assessment is whether there is a reasonable suspi cion that the individual may be involved in criminal activity. F urther, “[t]he possibility of an innocent explan ation for the suspicious conduct does not necessa rily forbid an officer from making a brief, investigatory stop” or detention to confirm or dispel his suspicion. Id.; se e United States v. Perkins, 363 F.3d 317, 327 (4th Cir. 2004). Indeed, as many courts including the Supreme Court of the United States have pointed out, in the landmark case of Terry v. Ohio, 392 U.S. 1 (1968), acts that could have been seen as innocent indepe ndently when view ed collective ly provided law enforcement with reasonable suspicion to s top the defendant for the purpose of further inve stigation. See Arvizu, 534 U.S. at 274. On appellate review, applying the se Fourth Amendment principle s, we must consider the “‘totality of the circumstances’ of each case to see whether th e detaining officer ha[d] a ‘particularized and objective basi s’ for suspecting legal wrong doing.” Mason v. Commonwealth, 291 Va. 362, 368, 786 S.E.2d 148, 151 (2016) (quoting Arvizu, 5 34 U.S. at 273); see also Terry, 392 U.S. at 21-22. In conducting this analysis, we are mindful that an officer is permitted “to view the circumstances confronti ng him in light of his training and experience.” Atkins v. Commonwealth, 57 Va. App. 2, 19, 698 S.E.2d 249, 257 (2010). In this case, Officer Parrish a pproached the appellant in a kno wn “high narcotic[s] area.” See Whitaker v. Commo nwealth, 279 Va. 268, 276, 687 S.E.2d 733, 737 (2010) (“[W]hile a suspect’s presence in a high cri me area, standing alone, is not enough to support a reasonable particularized suspicion, it is a relevant contextual considera tion in a Terry analysis.”);- 9 - Welshman v. Commonwealth, 28 Va. App. 20, 32, 502 S.E.2d 122, 1 28 (1998) ( en banc ) (noting that “‘presence in ahigh crime area’ is a factor [that] may be considered in determining whether an investigatory stop is appropr iate” (quoting Brown v. Commonw ealth, 15 Va. App. 232, 234 n.1, 421 S.E.2d 911, 912 n.1 (1992))). The appellant was sitti ng in his parked car late at night with another adult. He was “ex tremely nervous” when he lowered the window and spoke with the officer. See Illinoi s v. Wardlow, 528 U.S. 119, 124 (2000) (“[N]ervous, evasive behavior is a pertinent factor in determin ing reasonable suspicion.”). He had two prescription medication bottles in his lap. When he hande d them to Officer Parrish, th e officer noticed that the bottle labeled “morphine” and marked a s a “controlled substance” conta ined only two of the ninety pills prescribed. 6 The officer deduced that based on the prescription label noti ng that it had been filled seven days earlier, the bottle should have been mostly f ull rather than containing only two pills. Based on this record, the totalit y of the circumstances, viewed objectively, supports the circuit court’s conclusion tha t Parrish had a rea sonable, artic ulable suspicion that the appellant was engaged in the illeg al sale of morphine. 7 The lawful detention allowed the officer to work to

6 The appellant claims that Parrish’s observation of the two pil ls arose from a separate and distinct action from his ha ndling of the bottle and reading the label. However, at this juncture, we view the evidence in the light most favorable to t he Commonwealth, including all reasonable inferences flowing fro m the evidence . Officer Parri sh’s testimony that he read the label “and [he] noticed” that only two pills were in the bottle supports the inference that his observation of the number of pill s occurred simultaneously withhis reading of the label. Therefore, we treat the office r’s knowledge of the actual numbe r of pills in the bottle as one of the circumstances known to him whe n he detained the appellant.

7 The appellant suggests that once the officer determined that t he prescription was in his name, the inquiry should have ende d. He argues that despite th e fact that only two pills were in the bottle, there were numerous i nnocent explanations for that fact. As already noted, “the possibility of innocent conduct” does not preclude the officer who has a reasonable suspicion of criminal activity from detaini ng the individual in order to fur ther investigate to quickly confirm or dispel his suspicion, thus r esolving any ambiguity and estab lishing whether illegal activity is afoot. See Arvizu, 534 U.S. at 277; Raab, 50 Va. App. at 581-8 2, 652 S.E.2d at 147.- 10 - “quickly confirm or dispel” th at suspicion by next asking the a ppellant the amount of his daily dose. Therefore, the circuit co urt did not err in holding that the officer’s seizure of the appellant following their consensual encoun ter did not violate his Fourth Amendment rights.
III. CONCLUSION The appellant’s first assignme nt of error challenging the offi cer’s search of the bottle as being beyond the scope of his c onsent is procedurally barred un der Rule 5A:18. The second assignment of error, challengi ng the investigatory detention, a lso fails because the totality of the circumstances supports the conclu sion that the officer had a re asonable articulable suspicion of illegal activity. Consequently, we hold that the circuit court correctly denied the appellant’s motion to suppress. For these r easons, we affirm the convictio n for possession of a controlled substance with the intent to distribute. Affirmed.