Vol. 3, No. 1 | February 2008

Probable Cause and the "Apothecary Fold"

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu   

            Police officers who work in areas where illegal drug activity is common are familiar with what is often referred to as the “apothecary fold.”  The apothecary fold involves the careful folding of a dollar bill lengthwise three times, with a small amount of drugs in the middle and then folding the two ends toward the middle.  

            In November of 2003, a Petersburg police officer pulled over an automobile in a high crime area of the city because the car had been reported as stolen.  The officer ordered Grandison, a front seat passenger, out of the car, handcuffed him for his safety, and patted him down.  (The legality of all of these actions was not at issue on appeal).  During the pat down, the officer observed a dollar bill protruding from the front pocket of Grandison’s jeans.  The officer testified that the dollar bill was folded in the apothecary fold.  When he opened it, he found cocaine.

            The issue on appeal was whether the officer was justified in seizing and opening the folded dollar bill.  During a lawful pat-down, an officer may seize objects that she finds in plain view.  The seizure is lawful only if the officer has probable cause to think that the item seized is contraband or evidence of a crime.  Thus, the more precise issue in this case was whether the officer’s observation of a dollar bill folded in the apothecary fold provided probable cause to think the folded bill contained contraband.  On June 8, 2007, the Virginia Supreme Court held, 4-3 in an opinion written by Justice Stephenson in Grandison v. Commonwealth,1 that the officer did not have probable cause to seize the folded dollar bill.

            Key to the majority’s holding was its view of the applicability of two of its prior probable cause decisions – Harris v. Commonwealth2 and Brown v. Commonwealth.3  In Harris, the court held that the discovery of a film canister during a pat-down did not provide probable cause to think that the canister contained contraband.  In Brown, the court held that the discovery of a hand-rolled cigarette on the defendant did not provide probable cause to think it was a marijuana cigarette.  In both of these cases, the defendants were in high crime areas and the officers who made the seizures had testified that their training and experience as police officers gave them knowledge that film canisters are often used to hide contraband and that hand-rolled cigarettes often have marijuana in them.  Nevertheless, in both of these cases the court concluded that probable cause was lacking because probable cause cannot be based solely “on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes.”4

        In Grandison, the court concluded that its decision was controlled by its holdings in Harris and Brown.  “As with the canister in Harris and the hand-rolled cigarette in Brown, the folded dollar bill was legal material with a legitimate purpose, even though Officer Gilstrap, based on his experience, knew that dollar bills folded in a similar manner are often used as containers for drugs.  No other circumstances indicated criminal activity.”5

            The three dissenting justices disagreed with the conclusion that the facts in Grandison were essentially the same as the facts in Harris and Brown.  The dissenters, in an opinion written by Justice Agee, noted that “[n]either the film canister nor the cigarette reflected an intentional manipulation of an otherwise legitimate object into an item that a trained police officer could identify as contraband on the basis of the manipulation.”6

            The dissenters cited the U.S. Supreme Court’s decision in Texas v. Brown7 in support of its conclusion.  In that case, the Court upheld a police officer’s seizure of a knotted party balloon held by a person in a car that the officer had lawfully stopped.  The balloon, of course, was an otherwise legitimate object.  The dissenters in Grandison viewed the balloon as having been “manipulated” by the defendant for an illegitimate purpose.

            It is questionable whether tying a knot in a party balloon is in fact a manipulation of the balloon since such balloons are often tied after some air (or other gas) has been placed in them.  Nevertheless, the dissenters seem to have the stronger argument.  In my experience, at least, it is rare to see a piece of currency folded in the distinctive manner of the apothecary fold.  However, it may be that the majority had a practical concern.  Allowing the observation of a folded piece of money in a pants pocket to constitute probable cause to seize might provide a strong temptation to a few police officers to let their desire to seize the folded currency influence their recollection of what they saw.  This can be a concern even without thinking that police officers would be inclined to misrepresent what they saw.  The desire to seize and later justify that seizure might well unconsciously affect an officer’s recollection.

            Another practical concern might be the difficulty of sorting out, through testimony, whether an officer had seen enough of the folded piece of currency to be able to conclude that it was folded in the manner of the apothecary fold.  First, it is rare that a person’s money would protrude from their pants pocket.  Second, it is even rarer that the extent of the protrusion would be sufficient to provide enough of a view of the money to enable an officer to testify that it was folded in an apothecary fold.  Of course, these are matters of proof.  Whether such considerations should influence a court’s resolution of an issue like the one in Grandison is debatable, but the possibility that they did is worth noting.

            Grandison is significant for another reason.  Dating back at least to the Court’s ground-breaking decision in Terry v. Ohio,8 the U.S. Supreme Court has often stated that courts reviewing probable cause (and reasonable suspicion) issues should take into account that police officers bring considerable training and experience to these determinations.  For example, in Terry the Court indicated that a police officer may frisk a person “where [the officer] observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.”9  In Texas v. Brown (the case cited by the dissenters in Grandison), the Court stated that “the distinctive character of the balloon [seized] spoke volumes as to its contents – particularly to the trained eye of the officer”10 (emphasis added).  As recently as 2002, in U.S. v. Arvizu,11 the Court indicated that in reviewing reasonable suspicion determinations made by police officers, courts should allow “officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’”12

            The U.S. Supreme Court’s emphasis of this point has always been a little bit troublesome to me.  While it cannot be disputed that police officers learn things from their experience that enable them to infer suspicion where others would not be so justified (without that experience), police officers should not be allowed to rely on this experience as though they were waving a kind of magic wand.  At a minimum, judges should require police officers to explain what it is about their experience (or training) that caused them to impute suspicion to a particular observation or situation.  Certainly, judges should not permit police officers to simply testify that “based on my ten years of experience as a police officer, what I saw struck me as suspicious” and use that as a basis for upholding the officer’s probable cause (or reasonable suspicion) determination.

            Of course, it appears that in Grandison, Officer Gilstrap made no such bald, unexplained assertion of experience.  In fact, the trial judge qualified Gilstrap “as an expert in the packaging of drugs.”[13]  However, by rejecting the notion that observation of the apothecary fold provides probable cause to conclude that the person possessing the currency also possesses contraband, the Virginia Supreme Court seems to be indicating that it intends to scrutinize carefully claims of suspicion based on the training and experience of law enforcement officers.  This suggests that police officers are well-advised to explain in great detail the nature of their experience and the training they have received when they want a judge to use that experience and training to buttress their claims of suspicion.  It will not guarantee a favorable decision by a judge, but it will certainly do nothing to hurt their chances.

[1] 645 S.E.2d 298.

[2] 400 S.E.2d 191 (Va. 1991).

[3] 620 S.E.2d 760 (Va. 2005).

[4] Id., p. 763.

[5] Grandison, pp. 300-01.

[6] Id., p. 301.

[7] 460 U.S. 730 (1983).

[8] 392 U.S. 1 (1968).

[9] Id., p. 31.

[10] Brown., p. 743.

[11] 534 U.S. 266 (2002).

[12] Id., p. 274.

[13] Grandison, p. 300.

Disclaimer: 
The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.