                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Russell, AtLee and Malveaux
              Argued by teleconference
UNPUBLISHED




              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1821-17-2                                  JUDGE WESLEY G. RUSSELL, JR.
                                                                                   MAY 1, 2018
              ANTONIO JERMAINE SPENCER


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                               Joi Jeter Taylor, Judge

                               John I. Jones, IV, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on briefs), for appellant.

                               Kelsey M. Bulger, Assistant Public Defender, for appellee.


                     Pursuant to Code § 19.2-398(A)(2), the Commonwealth of Virginia appeals the circuit

              court’s pretrial order granting Antonio Jermaine Spencer’s motion to suppress evidence seized by

              police prior to his arrest on October 16, 2017. On appeal, the Commonwealth contends that the

              encounter between Spencer and the police that led to the discovery of first marijuana and

              subsequently a firearm was consensual, and thus, the circuit court erred in granting the motion to

              suppress. For the reasons that follow, we reverse the judgment of the trial court.

                                                        BACKGROUND

                     In general, because the circuit court granted Spencer’s motion to suppress, we view the

              evidence in the light most favorable to Spencer, granting him the reasonable inferences that flow

              from the evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48

              (1991). However, in reaching its decision, the circuit court made certain express factual findings



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
unfavorable to Spencer and rejected his testimony regarding certain issues. Such express

“findings of fact . . . are presumed to be correct,” and we are bound by them unless such a

“finding is plainly wrong or is without credible evidence to support it.” Floyd S. Pike Elec.

Contractor, Inc. v. Commissioner, Dep’t of Labor & Industry, 222 Va. 317, 322, 281 S.E.2d 804,

807 (1981).

       So viewed, the evidence establishes that around 10:30 p.m. on April 20, 2017, Officers

Herbert Baer and Cole Kelly of the Richmond Police Department were in uniform and on foot

patrol in the Mosby Court area talking to people regarding a double homicide that recently had

taken place. They encountered Spencer and another individual walking on the sidewalk. The

officers did not draw their weapons, but were carrying flashlights, which they used to illuminate

Spencer, his companion, and the area around them.

       As the men approached the officers, Baer asked them if they lived on the property. The

men said they did not, and Spencer stated that they were walking back to their car to leave the

area. Baer asked the men for their identification, and Spencer handed Baer a Virginia

identification card, which Baer gave to Kelly. While Kelly was recording appellee’s identifying

information, Baer continued to talk to Spencer. The tone of the conversation was casual.

       During the conversation, Baer saw the white top of a prescription pill bottle in a “side

cargo pocket” of Spencer’s pants. Baer asked Spencer if he had a prescription for the pill bottle.

Spencer replied that he did not.1




       1
          Spencer testified that he said he did have a prescription for the pill bottle. The circuit
court rejected Spencer’s testimony in this regard, finding that “Baer asked [Spencer] if he had a
prescription for the bottle; [Spencer] said he did not.”
                                                 -2-
       Baer asked Spencer if he could see the pill bottle, and Spencer handed the pill bottle to

Baer in response.2 The bottle itself, which was blue, did not have a label.3 In handing over the

bottle, Spencer did not make any statement as to whether or not Baer could open the bottle. The

circuit court found that upon receiving the bottle, Baer “immediately removed the cap and found

a green leafy substance inside the bottle.” The substance appeared to be marijuana. Baer then

patted down Spencer and found a firearm in his pants.

       Spencer moved to suppress the evidence that was “seized as a result of the warrantless

seizure and search of [Spencer],” arguing that he was seized in violation of the Fourth

Amendment and that the subsequent search of the pill bottle and his person also violated the

Fourth Amendment. The Commonwealth argued in response that Spencer’s encounter with the

officers was consensual up to and including Baer’s discovery of the marijuana in the pill bottle,

and thus, Spencer was neither unlawfully seized nor unlawfully searched.

       The circuit court granted the motion to suppress, concluding that, although it began as a

consensual encounter, the nature of the officer’s interaction with Spencer changed when they

requested his identification and he complied. Specifically, the circuit court found “that the


       2
          The manner in which Baer came to possess the bottle was disputed at the suppression
hearing. Spencer testified that he did not give the bottle to Baer, but that Baer took “the pill
bottle out of my pocket.” In the initial order ruling on the motion to suppress, the circuit court
detailed the different versions of how Baer came to possess the bottle but did not resolve the
issue, finding that “regardless of how Officer Baer came to possess the pill bottle, it was
unlawfully seized.” The Commonwealth, noting that determination of how Baer came to possess
the bottle would affect how it would choose to proceed, requested that the circuit court make a
factual finding on the issue. Subsequently, the circuit court, stating that it found Baer credible
regarding parts of the encounter, concluded that the pill bottle “was tendered to [Baer] by
[Spencer] based on a request from” Baer. Although the circuit court rejected Spencer’s version
of how Baer came to possess the bottle, the circuit court rejected as incredible Baer’s testimony
that he could see that there was something inside the blue pill bottle without opening the pill
bottle. Specifically, the circuit court stated that Baer’s testimony that he could see something in
the bottle before opening it was the “point at which I found [Baer’s] testimony to be incredible.”
       3
         The Commonwealth introduced photographs of the bottle into evidence at the
suppression hearing.
                                          -3-
encounter was consensual until [Spencer] complied with Officer Baer’s request for identification.

At that point, [Spencer] was seized as he had submitted to a show of police authority and

reasonably believed he was not free to leave while Officer Kelly checked his identification card.”

       From this conclusion, the circuit court found that Baer’s search of the bottle was unlawful

because the purportedly impermissible seizure rendered any compliance with Baer’s request to

see the bottle involuntary.4 Alternatively, the court held that, assuming Spencer “voluntarily

gave the bottle to the officer, the evidence does not support the Commonwealth’s argument that

inherent consent to remove the cap existed.”

       The Commonwealth appeals to this Court, stating as its sole assignment of error that

               [t]he trial court erred in suppressing the evidence, namely the
               firearm recovered during the search incident to arrest, based on its
               finding that the police officer illegally detained the defendant,
               illegally possessed and illegally searched the pill bottle containing
               marijuana, and ultimately unlawfully conducted a search incident
               to arrest resulting in the firearm’s recovery.

                                           ANALYSIS

   I. Spencer was not seized for Fourth Amendment purposes until after the discovery of the
                                         marijuana.

       In evaluating a claim that a person was seized by police in violation of the Fourth

Amendment, a court must first determine the nature of the police-citizen encounter. For the purpose

of Fourth Amendment analysis, such encounters have been divided

               into three categories. First, there are communications between
               police officers and citizens that are consensual and, therefore, do
               not implicate the [F]ourth [A]mendment. Second, there are brief
               investigatory stops which must be based on specific and articulable
               facts which, taken together with rational inferences from these
               facts, reasonably warrant a limited intrusion. Third, there are


       4
         In its initial order, the circuit court addressed the alternative scenario in which Baer,
instead of being given the bottle, took it from Spencer’s pocket. The court expressly found that
Baer “lacked probable cause to take” the pill bottle; however, given the trial court’s subsequent
ruling that Baer was given the pill bottle, this scenario is not before us in this appeal.
                                                   -4-
               highly intrusive, full-scale arrests, which must be based on
               probable cause.

Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173 (1988). Here, the

Commonwealth does not argue that the officers had either probable cause or reasonable

articulable suspicion to justify a detention of Spencer prior to finding the marijuana in the pill

bottle; rather, the Commonwealth argues that, until the marijuana was discovered, the encounter

was a consensual one that did “not implicate the [F]ourth [A]mendment.” Id.

       “[W]hether a person has been seized in violation of the Fourth Amendment . . .” or is

engaged in a consensual encounter with police is a question that we review de novo. Harris v.

Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206, 209 (2003). In conducting our review, we

defer to the circuit court’s finding of historical fact. Id. Thus, circuit courts make final factual

determinations regarding what happened, and appellate courts ultimately are responsible for

determining the Fourth Amendment significance of those factual determinations.

       “In order for a seizure to occur, an individual must be under some physical restraint by an

officer or have submitted to the show of police authority.” Thomas v. Commonwealth, 24

Va. App. 49, 54, 480 S.E.2d 135, 137 (1997). Ultimately, an encounter is consensual unless “a

reasonable person would not feel free to decline an officer’s requests or would not feel free to

leave . . . .” Bandy v. Commonwealth, 52 Va. App. 510, 516, 664 S.E.2d 519, 522 (2008)

(internal quotation marks and citation omitted).5

       In making this determination, we consider the totality of the circumstances. Harris, 266

Va. at 32, 581 S.E.2d at 209. The Supreme Court has recognized

               [v]arious factors . . . as relevant in determining whether a seizure
               has occurred, including the threatening presence of a number of

       5
         Because the standard of whether a reasonable person would have felt free to leave is an
objective one, a citizen’s subjective belief that he is not free to leave is not dispositive. Cf.
Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in
ordinary . . . Fourth Amendment analysis.”).
                                                  -5-
               police officers, the display of weapons by officers, physical contact
               between an officer and a citizen, an officer’s language or tone of
               voice compelling compliance, the retention of documents
               requested by an officer, and whether a citizen was told that he or
               she was free to leave.

Id.

       Here, the evidence establishes that two citizens were faced with only two officers. No

weapons were drawn by the officers, and, by all accounts, the tone of the conversation between

Baer and Spencer was collegial. Prior to the discovery of the marijuana, no physical restraint

was used, and Baer did not issue commands to Spencer, but rather, only made requests.

Although the officers illuminated Spencer, his companion, and the area with flashlights, given

the time of night and description of the lighting, the action was reasonable and did not connote a

threat or show of force.6

       Spencer contends (and the trial court found) that the encounter became a seizure once he

provided his Virginia identification card to Baer. The trial court found that once this occurred,

Spencer “had submitted to a show of police authority and reasonably believed he was not free to

leave” so long as the police possessed his identification card.

       Absent some other coercive factor not present here, reaching this conclusion is foreclosed

by the Virginia Supreme Court’s decision in Branham v. Commonwealth, 283 Va. 273, 720

S.E.2d 74 (2012). In Branham, shortly after midnight, three law enforcement officers in two

marked police cars encountered Branham while he was parked on a private driveway. Id. at

276-77, 720 S.E.2d at 76. One of the officers “turned his spotlight on” Branham’s car,

approached the car, and “asked Branham for his driver’s license.” Id. at 277, 720 S.E.2d at 76.



       6
         Although its conclusion is not binding upon us, we note that the trial court similarly
concluded that none of these underlying factors suggested anything other than a consensual
encounter, finding that “the encounter was consensual until [Spencer] complied with Officer
Baer’s request for identification.”
                                               -6-
Branham complied with the request, and, while a license check was underway, one of the

officers had a conversation with Branham and requested Branham’s permission to search

Branham’s person. Id. Branham consented and, in the resulting search, the officer found “a

plastic baggie containing an off-white powder that appeared . . . to be cocaine,” which led the

officer to arrest Branham. Id. at 278, 720 S.E.2d at 77.

       Much as Spencer does here, Braham sought to suppress the fruits of the search, arguing

that he was impermissibly seized when he complied with the officer’s request for his license. Id.

The Supreme Court rejected that argument, finding that, standing alone, complying with an

officer’s request for a license does not convert a consensual encounter into a seizure and that,

under the circumstances, the officer’s “request to see [the] driver’s license was no more than a

request, and Branham’s compliance was voluntary and not coerced.” Id. at 280, 720 S.E.2d at

78.

       Applying this rationale to the instant case, Spencer was not seized for Fourth Amendment

purposes when he provided Baer with his identification card. If anything, the surrounding

circumstances in Branham were more coercive; Branham, who was alone, encountered three

officers while Spencer and his companion were met by only two. Accordingly, the circuit court

erred in concluding that Spencer was seized at any point prior to the discovery of the marijuana.

As a result, the circuit court also erred in concluding that Spencer’s act of giving Baer the pill

bottle was involuntary because it “occurred during a seizure.”7

             II. Spencer’s actions constituted consent for Baer to open the pill bottle.

       Our conclusion that, based on the facts found by the circuit court, Spencer voluntarily

gave the pill bottle to Baer does not end the analysis. The Commonwealth does not contend that


       7
          There is no question that Spencer was seized for Fourth Amendment purposes after the
discovery of the marijuana; however, at that point, the officers had probable cause to arrest him
as a result of the discovery of the marijuana.
                                               -7-
the mere existence of the pill bottle provided a sufficient basis to allow a search of the bottle

consistent with the Fourth Amendment. Rather, the Commonwealth contends that by voluntarily

giving the bottle to Baer, Spencer consented to a search of the bottle.

       As noted above, police need neither probable cause nor reasonable articulable suspicion

to search a person, place, or thing if a citizen consents to the search. “[S]earches made by law

enforcement officers pursuant to a valid consent to search do not implicate the Fourth

Amendment.” Hughes v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159 (2000)

(en banc). In determining whether a consent search was valid, “we are bound by the trial court’s

findings of historical fact[,]” but “we consider de novo whether those facts implicate the Fourth

Amendment and, if so, whether the officers unlawfully infringed upon an area protected by the

Fourth Amendment.” Id. at 454, 524 S.E.2d at 158-59. Thus, as with the seizure question

discussed above, the circuit court makes the determination regarding what happened between

Baer and Spencer, but appellate courts have the ultimate responsibility for determining the

Fourth Amendment significance of those factual determinations.

       This bifurcated review makes sense because Fourth Amendment analysis does not turn on

the subjective intentions and understandings of either the officer or the citizen. Cf. Whren v.

United States, 517 U.S. 806, 813 (1996). Determining whether a person’s statements and actions

constitute a valid consent to search an object is an objective question. As the United States

Supreme Court has observed, “[t]he standard for measuring the scope of a suspect’s consent

under the Fourth Amendment is that of ‘objective’ reasonableness -- what would the typical

reasonable person have understood by the exchange between the officer and the suspect?”

Florida v. Jimeno, 500 U.S. 248, 251 (1991) (emphasis added) (reversing the Florida Supreme




                                                -8-
Court’s decision that affirmed a trial court’s determination that the scope of consent allowing a

vehicle search did not include opening a container found in the vehicle).8

       Thus, the question before us is whether a reasonable person, considering the facts found

by the circuit court, would have believed that Spencer effectively had consented to the opening

of the pill bottle. For the following reasons, we hold that a reasonable person would have so

concluded, and thus, reverse the circuit court’s granting of Spencer’s motion to suppress.

       Based on the facts found by the trial court, Baer, upon seeing the pill bottle, asked

Spencer whether he had a prescription for the pill bottle. Viewed in this context, a reasonable

person would conclude that Baer was suspicious that the bottle contained contraband, whether an

illegal substance or a legal substance that Spencer was without authority to possess. According

to the circuit court, Spencer responded that he “did not.” A reasonable person learning this fact

certainly would recognize that the response would heighten the officer’s suspicion that the bottle

contained contraband.

       Although the circuit court does not make an express finding of what Baer next asked, it

appears to have concluded that Baer asked to “see it,” and we assume that was the request made



       8
          As both Spencer and the dissent note, we previously have stated that, regarding consent
searches, the issue of consent is a factual one. See, e.g., Jean-Laurent v. Commonwealth, 34
Va. App. 74, 79, 538 S.E.2d 316, 318 (2000) (noting that “the presence of consent is a factual
question to be determined by the trier of fact”); Bynum v. Commonwealth, 23 Va. App. 412,
418, 477 S.E.2d 750, 753 (1996) (noting that “[b]oth the presence of consent to search and any
related limitations are factual issues for the trial court to resolve after consideration of the
attendant circumstances”). We continue to adhere to this view; however, nothing in our
recognition of a circuit court’s fact-finding role should be read as abdicating our role to
determine the significance of the facts found to the ultimate Fourth Amendment question.
Whether the hypothetical “typical reasonable person” would have understood Spencer’s action of
giving the pill bottle to Baer as manifesting consent for Baer to open the pill bottle simply is not
a question of historical fact; it is a mixed question of law and fact that we review de novo.
Reading these cases in the manner suggested by both Spencer and the dissent would run afoul of
the bifurcated standard of review that prior decisions of both the United States Supreme Court
and this Court sitting en banc have made clear applies in cases involving consent searches. See,
e.g., Jimeno, 500 U.S. at 251; Hughes, 31 Va. App. at 454, 524 S.E.2d at 158-59.
                                                   -9-
of Spencer. Although a request to “see” something can be interpreted as a request simply to gaze

at an object, in everyday speech it is often understood as a request to be given an object to allow

for inspection. Dictionaries contain definitions of “see” consistent with both a purely visual

experience and something more tactile. See, e.g., Webster’s Third International Dictionary, 2054

(compare one definition of “see” as “to perceive by the eye: apprehend through sight” with

others, including “to have presented for observation or consideration” and “to direct one’s

attention to: put under observation”). Here, given the context of the conversation to that point,

we believe the typical reasonable person would conclude that Baer’s request to “see” the pill

bottle was not a request to look at it from a distance but was a request to have the bottle

“presented for observation or consideration.”9

          Once Spencer had given Baer the bottle, the question becomes whether a reasonable

person would conclude that, given the context of the encounter to that point, consent had been

given for Baer to open the pill bottle. Given the questions that would have been understood to

indicate that Baer was interested in the bottle because it may contain contraband, Spencer stating

that he did not have a prescription for the bottle and giving no indication that he did not want

Baer to open the bottle, and Spencer’s handing the bottle, which did not have a label,10 to Baer, a

typical reasonable person would conclude that consent had been given for Baer to open the

bottle.




          9
         Although Spencer’s subjective understanding is not material to the ultimate question,
we note that, in response to the request, he did not hold the bottle up for Baer simply to gaze at,
but rather, handed the bottle to Baer.
          10
          Baer did not know that the bottle did not have a label until after Spencer produced it;
however, Spencer would have known the bottle did not have a label before he produced it. In
any event, the lack of a label would have been readily apparent once Spencer removed the bottle
from his pocket.
                                               - 10 -
        Our conclusion finds support in the decision of the United States Court of Appeals for the

Fifth Circuit in United States v. Stewart, 93 F.3d 189 (5th Cir. 1996). Although not binding on

us, we find it persuasive given the factual similarities. In Stewart, law enforcement officers

approached Stewart in an airport and engaged her in conversation. Id. at 191. During the

conversation, the officers asked questions demonstrating that they were interested in drug

trafficking and Stewart responded that she only had prescription medication in a bottle that she

held up for the officers to see. Id. One of the officers then “asked to look at the bottle, and

Stewart handed it to him. . . . [The officer] then opened the bottle, looked inside, and observed

[what the officer] suspected was a controlled substance.” Id.

        Stewart moved to suppress the contraband discovered in the bottle, arguing that her

tendering the bottle in response to a request by the officer to “look at” the bottle did not evidence

consent for the officer to open the bottle. Id. at 192. After noting that “[t]he standard for

measuring the scope of the suspect’s consent is objective reasonableness . . . [and that] the key

inquiry focuses on what the typical reasonable person would have understood by the exchange

between the officer and the suspect[,]” the Fifth Circuit concluded that, given the context of the

conversation that had preceded the tendering of the pill bottle, “it [was] objectively reasonable to

expect [the officer] to look in the bottle after being granted permission to look at the bottle . . . ,

[and thus,] [t]he search was within the scope of Stewart’s consent.” Id.

        For the same reasons, we reach the same conclusion, and find that Spencer’s actions

viewed in context evidenced consent for Baer to open the pill bottle, and thus, Baer’s doing so

did not offend the Fourth Amendment. Accordingly, we reverse the judgment of the trial court




                                                 - 11 -
suppressing the evidence, namely the firearm that was discovered as a result of the search of

Spencer’s person that followed Baer’s discovery of the marijuana in the pill bottle.11

                                          CONCLUSION

       For the foregoing reasons, we conclude that, under the applicable precedents, Spencer

consented to the search of the pill bottle that led to the search of his person and subsequent

discovery of evidence. Accordingly, we reverse the judgment of the circuit court suppressing the

evidence found as a result of the search of his person and remand the case to the circuit court for

further proceedings consistent with this opinion.

                                                                           Reversed and remanded.




       11
         In both its petition and its assignment of error, the Commonwealth limits the relief
requested to reversal of the trial court’s suppression of the discovery of the firearm.
                                                 - 12 -
Malveaux, J., concurring, in part, and dissenting, in part:

        I concur in the majority opinion that the defendant’s encounter with police was

consensual. However, I respectfully dissent from the majority holding that Spencer consented to

the search of the pill bottle’s contents.

        When Spencer encountered Officers Baer and Kelly, they informed him they were

checking for trespassers and talking to people about a double homicide that had recently

occurred in the area. Spencer complied with Baer’s request for identification, and while Kelly

noted his information, Baer saw a pill bottle in Spencer’s pocket. Baer then asked Spencer “if he

had a prescription for the bottle,” and Spencer replied that he did not. Baer requested to “see the

bottle,” and Spencer gave it to him. Upon receipt of the bottle, Baer noted that “it did not have a

label anywhere around [it].” As soon as Baer was in possession of the bottle, he opened it and

discovered marijuana. Although the circuit court concluded that the search of the pill bottle was

unlawful because Spencer was seized by the officers, and thus did not act voluntarily when he

gave Baer the bottle, it also found that “even if [Spencer] voluntarily gave the bottle to [Baer],

the evidence does not support the Commonwealth’s argument that inherent consent to remove

the cap existed.”

        In an appeal brought by the Commonwealth pursuant to Code § 19.2-398, we view the

facts in the light most favorable to the prevailing party below, and we grant that party all

reasonable inferences fairly deducible from that evidence. Commonwealth v. Grimstead, 12

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “We examine a trial court’s factfinding ‘with

the highest degree of appellate deference,’” and “[t]his deferential standard ‘applies not only to

the historical facts themselves, but the inferences from those facts as well.’” Holloway v.

Commonwealth, 57 Va. App. 658, 663-64, 705 S.E.2d 510, 512-13 (2011) (en banc) (first

quoting Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006); then

                                               - 13 -
quoting Clanton v. Commonwealth, 53 Va. App. 561, 566, 673 S.E.2d 904, 907 (2009) (en

banc)). “[A] factfinder may ‘draw reasonable inferences from basic facts to ultimate facts,’” so

long as the inferences do not “become so attenuated that they ‘push “into the realm of non

sequitur.”’” Bowman v. Commonwealth, 290 Va. 492, 500, 777 S.E.2d 851, 857 (2015) (first

quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979); then quoting Thomas, 48 Va. App. at

608, 633 S.E.2d at 231).

       “Consent to a search . . . must be unequivocal, specific and intelligently given . . . and it

is not lightly to be inferred.” Hawkins v. Commonwealth, 65 Va. App. 101, 107, 774 S.E.2d

492, 495 (2015) (quoting Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78, 538 S.E.2d 316,

318 (2000)). While consent “may be evidenced by conduct alone,” a defendant’s “mere

acquiescence to a search is inadequate to establish that he or she voluntarily consented to it, and

the Commonwealth bears a heavier burden ‘where the alleged consent is based on an

implication.’” Id. (quoting Jean-Laurent, 34 Va. App. at 79, 538 S.E.2d at 318). “‘The presence

of consent [to search] is a factual question to be determined by the trier of fact’ based on the

totality of the circumstances, and we [will] reverse a trial court’s decision regarding the presence

of consent only when it is plainly wrong.” Id. (quoting Jean-Laurent, 34 Va. App. at 79, 538

S.E.2d at 318).

       The circuit court, weighing the totality of the circumstances, found that the evidence did

not support finding that “inherent consent to remove the cap existed” if Spencer voluntarily gave

the pill bottle to Baer.12 Viewing the evidence and all fairly deducible inferences that flow from

it in the light most favorable to Spencer, this finding is not plainly wrong, because the circuit

court could reasonably infer that a reasonable person would have understood from the parties’



       12
           While the circuit court used the phrase “inherent consent,” it is clear from the record
that it used this formulation in response to the Commonwealth’s implied consent argument.
                                                - 14 -
exchange that Spencer’s consent only extended to an examination of the bottle’s exterior. When

Officers Baer and Kelly encountered Spencer, they gave no indication that they were looking for

illegal drugs or other contraband. In fact, the officers expressly stated their pursuit of unrelated

purposes. In the context of this exchange, Baer noticed the pill bottle and asked Spencer not

what it contained, but only whether he possessed a valid medical authorization for the bottle.

When Spencer stated that he did not have a prescription, Baer asked if he could “see” the bottle.

Spencer gave it to Baer, and when Baer held and examined the bottle, he could see that it did not

have a prescription label or any other label on it. A reasonable person under these circumstances

could have understood that when Spencer gave the bottle to Baer for him to “see” it, he did so for

the limited purpose of permitting Baer to verify his statement that he did not have a prescription

and, if he did not, to see if the bottle had a label indicating that it contained another person’s

prescription medication.

       While a request to “see” an object may be interpreted as a request both to visually inspect

that object and to open it, such a request may also, as the majority acknowledges, be contextually

understood as simply a request to view the object to verify or refute information. While Baer’s

request to “see” the bottle was ambiguous, in our present procedural posture, the evidence and all

reasonable inferences flowing from it must be viewed in the light most favorable to Spencer.

Thus, Spencer’s act in giving the prescription bottle to Baer must be interpreted as a limited

grant of consent for Baer to view the bottle’s exterior, and not as a broader grant of consent for

Baer to open and search the bottle for contraband.

       The circuit court was not plainly wrong in inferring that a reasonable person, under the

facts and circumstances here, would have understood that when Spencer handed the pill bottle to

Baer for him to “see the bottle,” his action did not convey consent for Baer to immediately open

the bottle and inspect its contents, since there was no prescription label in another person’s name

                                                - 15 -
or any other indication that the contents were somehow illicit. Because neither this inference,

nor the circuit court’s consequent finding that the evidence did not support the conclusion that

there was implied consent to remove the cap, was plainly wrong, I would affirm the circuit

court’s judgment granting Spencer’s motion to suppress.13




       13
           I further disagree that United States v. Stewart, 93 F.3d 189 (5th Cir. 1996), is
applicable to the instant case. The defendant in Stewart entered a conditional guilty plea,
reserving her right to challenge on appeal the trial court’s denial of her motion to suppress. Id. at
190-91. Thus, the procedural posture in Stewart differed from that of the instant case, where we
must view the evidence and all reasonable inferences derived therefrom in the light most
favorable to Spencer because he, rather than the government, prevailed below. Further, in
denying the defendant’s motion to suppress, the trial court in Stewart necessarily found that there
was sufficient evidence of consent to search the contents of the pill bottle—the opposite of the
trial court’s finding here, which we must affirm unless plainly wrong or without supporting
evidence. Id. at 191-92.
                                                 - 16 -
