*1 Riсhmond IGLESIAS ALEXANDER JULIO OF VIRGINIA COMMONWEALTH No. 0651-86-2 Decided September *3 Counsel Allen, brief), for C. Allen & on
Michael Barnes (Englisby, appellant. Shaffer,
H. Sue (Mary Elizabeth Assistant General Attorney General, Terry, brief), on Attorney appellee.
Opinion HEARING BANC
ON EN his con COLE, Iglesias, J. Alexander Julio Appellant, appeals vio viction of with the intent to of cocaine distribute possession lation He the following questions of Code 18.2-248. presents § (1) this whether his seizure and detention and the seizure appeal: of evidence from his rights guaranteed motor vehicle violated him under the fourth amendment of the United States Constitu I, constitution;1 tion and article section Virginia (2) whether the evidence adduced at trial was sufficient at law to establish a reasonable doubt that he beyond inten knowingly tionally cocaine with intent to distribute.2 For the fol possessed reasons, we lowing find no error and affirm the conviction.
I. 17, 1985, On 7:30 three July approximately Virginia p.m., State Police officers assigned to the narcotics division were sta- tioned at the Interstate 95 toll located to the plaza adjacent Colonial exit Heights Their was to observe north- ramp. purpose bound traffic in an effort to drug couriers. The identify possible charge officer in was A. agent assisted special Stephen Berry, agents Vernon Jones and John Childers. had been a
Berry agent narcotics crimes special investigating for the Virginia of State Police for As Department eight years. of his part he had attended a training, hour course with the forty State Police a two week Academy, training course with the Drug Administration, Enforcement and an additional two week analyti- cal school. had received further in the ille- Berry specific training gal of narcotics lec- transportation through “drug profile” ture mаterial of State developed by Virginia Department Police. He had in over arrests narcotics participated felony involving a variety executing activities from search warrants “street making buys.” shoes, shirt. jeans, blue tennis and a wearing pullover belt;
His badge was on his his and he displayed gun exposed, the first issue. Such ing 5A: 1 “The omitted). We therefore will discuss are Commonwealth, 12(c); the defendant condensed brief, (1979). ‘substantially This *4 Virginia Dudley court requirements, granted 230 Va. Estate the same as those contained in the Fourth Amendment.’ an alteration is the defendant’s Life 346, under our constitution and statutes Ins. Co. these three issues contrary n.1, only petition 337 S.E.2d the fourth amendment America, to accepted practice into 220 Va. appeal 273, two, on three issues. and altered the 343, 348, n.1 and issues. implementing (1985) 257 S.E.2d improper. ” (citations In his language Lowe v. [it], open Rule in because elevated slightly He was hand. in his held a walkie-talkie lanes. change the exact between barrier on the standing he was the toll. through went they cars as him to see into This allowed vehicles approaching. two he observed vantage From that point, car be a rental to right appeared to his first the car glance, At decals front windshield no or tags had because it from Florida As the car ap- advertisement. was an front license plate the Iglesias, driver, appellant later determined the proached, his jerked then away, looked Berry, quickly glanced briefly as from Berry as far toll plaza, left of the car over to the extreme get. he could box], the toll up “didn’t pull that Iglesias testified
Berry [to go.” to raise and in, barrier wait for the his money throw stop, the аnd threw Rather, said, the barrier through he rolled Berry quar- a chance machinery process giving toll without so that time to open sufficient gate giving ter and without it. hitting to avoid gate his brakes at the had to slam on Iglesias vehicle front end of the that he saw the Officer Jones also testified down, he described as action gate “dive” because to stop, at the defendant and Jones shouted abnormal. Both Berry activity considered this Berry but he continued north on 1-95. that, from his He testified be a nervous reaction to his presence. officer, through go did he see cars rarely as a experience did. Iglesias toll plaza to make barrier, was able Iglesias through
As went 20of ages between the driver was a male further observations: the floor- front alone; right on the cooler was travelling vehicle; license board; plate and the rear was in the luggage no vehi- was a rental “Z,” that the car indicating contained the letter cle from Dade Florida. County, followed aroused, and Childers Jones Berry,
Their suspicions rear in his Iglesias glanced cars. Iglesias unmarked separate Berry, When lane of 1-95. view mirror as he drove in the left Iglesias vehicle, Iglesias, got seventy-five yards lead within front of lane in into the right his vehicle over suddenly “jerked” col- avoid a unit, tractor-trailer it to slam on its brakes causing activated change, Berry lision. Given this lane dangerous off vehicle Iglesias’s lights pulled on his car and emergency road.
Upon stopping Iglesias, Berry identified himself as a of- ficer and obtained Iglesias’s driver’s license and the car’s rental conversation, After a papers. brief Berry asked if he was Iglesias transporting any illegal narcotics. He in the responded negative said, and “go ahead and search the vehicle if want to.” you Berry trunk, then asked him to produce the to the keys which he did. Berry him, asked if everything the car belonged and Iglesias acknowledged that it did. The trunk was empty. time,
At the same Jones special agent searched the passenger seat, compartment. the back he found a silver bag, tote unzip- and ped open, containing a male’s personal belongings and a brown Jones package. took the brown to the package rear of the car, Iglesias where were Berry talking. Berry opened corner white, the package and saw a powdery substance which ap- to him peared to be cocaine. A field test was performed substance tested positive cocaine. Iglesias was then arrested and advised of his Miranda rights. that,
Iglesias Florida, stated while in he had met Jose Martinez. When Martinez discovered Iglesias planned to New York to trip sister, see his Martinez asked him to deliver a to New package York, for $200. which he would be paid According his state- ment, Iglesias did not observe where in the car Martinez had put nor package, did he know what it contained. Martinez was to call Iglesias York, office, New either at his sister’s house or her to tell him what to do with the package.
A subsequent laboratory indicated the con- analysis package tained 999 grams cocaine of Based seventy-four percent purity. on his years in narcotics experience investigations, esti- mated that $400,000, the “street” value of the cocaine was that, when 4,000 cut and sold in gram it would quantities, yield separate sales. He testified that such a almost 2.2 quantity, pounds, was more than would usage. for individual required trial,
At Iglesias moved to all evidence obtained inci- suppress dent to the stop, contending because it was not illegal based upon probable cause or reasonable and articulable suspi- cion. Over Iglesias’s objection, his motion to was denied. suppress At the close of evidence, the Commonwealth’s moved to Iglesias strike the evidence or because it failed to show that he possessed that he had intent was over- distribute cocaine. The motion ruled. Iglesias was convicted of cocaine with the in- possession tent to distribute and eight sentenced to fifteen of which years, $10,000, $8,000 were He was also fined suspended. of which was This suspended. followed. appeal
II. *6 Iglesias contends that the trial court erred his mo- denying tion to all obtained as a result of his suppress evidence seizure and detention because constitutional him rights guaranteed under the fourth amendment and the Virginia Constitution were violated. that, More specifically, argues absent individual independent indicia of criminal activity, matching characteristics of a drug courier profile does not sufficient cause for provide an investi- gatory case, and that under stop, the facts this no credible evi- dence exists from which a of criminal can rea- activity be inferred. sonably
It is clear that
a motor vehicle on a
stopping
highway
detaining the driver “constitutes a ‘seizure’ within
meaning
Amendment,
Fourth
even though the
purpose
Lowe,
limited and the . . . detention
.
. . brief.”
Well established fourth amendment has placed jurisprudence police-citizen First, confrontations into three there are categories. communications between officers and citizens that are con police and, therefore, sensual do the fourth amendment. implicate Second, there are brief which be based on investigatory must stops specific which, and articulable facts rational together taken with inferences facts, from these warrant a limited intru reasonably Third, sion. intrusive, arrests, there are full-scale highly must Poitier, be based on probable cause. United States v. F.2d denied, 682 (8th (1988); Cir. cert. 1987), 108 S.Ct. Hanson, United States v. 1986). 801 F.2d 760-61 Because Iglesias did not raise the third of confrontation type with the second court,3 only we concerned in this case are
the trial confrontation, Terry so-called stop. type for reasonable Each suspicion.
There is no “litmus test”
for reasonableness
judged
instance of
conduct must
police
circumstances.
which permissible: must be before a is present
First, of the cir- the assessment must be based all ob- objective cumstances. The with various analysis proceeds servations, avail- information from if such are police reports, able, and consideration of the modes or of patterns operation data, of a trained certain kinds of lawbreakers. From these — inferences officer draws inferences and makes deductions and deductions well an untrained might person. elude
[*] [*] [*] [*] The that an assess- second element contained in the idea suspi- ment of the whole must yield picture particularized must raise cion is the described just concept process en- is that the individual being stopped particular gaged wrongdoing.
3 See IV of this part opinion. infra
101 Id. at 418. of observations
Falling objective into this first are category characteristics found in a courier “an profile, informally compiled thought abstract characteristics typical persons Mendenhall, drugs.” United States v. carrying illicit U.S. 544, 670, v. F.2d Clardy, n.1 United States (1980); is list 1987). Cir. It of more or simply open-ended laundry circumstances, less some which occur in a suspicious may par State, 1,_, ticular case. 55 Md. 461 A.2d Grant App. 526 (1983). “drug courier is a “convenient profile” descrip tive term deal great legal significance.” without Id. suppression hearing judge reviewing сourt
[T]he look the actual observations testified on a case- [must] by-case . . basis and . decide whether those observations add toup articulable . . as if suspicion, just phrase “drug . had never profile” legal signifi- been coined. The only cance to this umbrella “the term called that the profile” expertise police will be into consid- legitimately taken eration when we assess the of observations that significance might to the untrained seem layman ambigu- completely ous. . . special . The that a significance given observation might have a trained could al- experienced policeman be basis, established on a if ways case-by-case even the “pro- file” did not exit.
Id.
The courts must in determining standards apply objective whether exists, into ac requisite degree taking of suspicion count that “trained police officers be ‘able perceive articulate meaning given inno wholly conduct would ” cent to the untrained observer.’ United States v. Gooding, F.2d 82 (4th 1982). must on objec Attention be focused tive subjective reasonableness rather than on the officer’s intent. As the Supreme Court explained Terry.
The scheme the meaningful Fourth Amendment becomes only when it is conduct of assured that at some the point those charged with law to the enforcing subjected the can be detached, more must evalu- neutral of a who scrutiny judge seizure in the of a search or particular ate reasonableness And in that as- making of the circumstances. light particular be judged against sessment it is that the facts imperative the officer at standard: would the facts available to objective or a man of the moment the seizure the search “warrant that the action taken was reasonable caution in the belief’ appropriate? U.S. a Fourth Amendment viola
Terry, 392 at 21-22. “Whether the tion has occurred ‘turns on an assessment of officer’s objective light confronting actions in facts and circumstances him at the and not state of mind at the time time’ on the officer’s actual Macon, was taken.” U.S. challenged Maryland action States, 436 U.S. (1985) 470-71 Scott v. United (quoting 136 (1978)). — bar, In the case at we must examine whole picture — of the circumstances to determine whether
totality special agent had facts war- Berry reasonably articulable that specific be, was, ranted a Iglesias engaged that or about in of an activity. matching criminal As stated indi- previously, and his “drug vidual conduct to so-called courier profile” may legiti- constitute articulable facts which a officer Berry Iglesias’s From his observation observed mately rely. post, Florida contain- bearing plate vehicle headed northbound license ing “Z.” a Florida the letter This indicated to that this was Berry 1,000 vehicle which is rental from Dade County, approximately Virginia. ages miles from to be between the Iglesias appeared experi- twenty thirty-five, age group Berry’s within the the vehicle training might ence and indicated be couriers. In infer wanted Iglesias was a cooler. From this fact could Berry luggage no avoid observed stops along highway. Barry magistrate From could infer vehicle. this fact the officer or characteristics, par- These Iglesias making quick trip. combination, that trans- should a trained officer alert ticularly he should be occurring portation illegal contraband may vigilant Additionally, Berry explained activities. suspect’s as un- that in he considered what he described making the stop Berry gate usual behavior of at the toll thereafter. Iglesias was: “this this that his from behavior impression testified first Furthermore, fol- man want to me.” get doesn’t close his rear glanced at him Iglesias highway, Iglesias lowed *9 him, view mirror within got and when of Berry seventy-five yards Iglesias his vehicle over into the lane of suddenly “jerked” right travel so close to the front end of a tractor-trailer unit that it had that, testified slam on its brakes to avoid a collision.4 Berry circumstances, a upon of all of these he decided to totality stop Iglesias to further. find investigate We that these circumstances reasonable, created a articulable Iglesias was trans- porting illegal drugs.
We are unaware of
United States or
any
Virginia Supreme
Court case which involves the
of a motor
on
stopping
vehicle
highways based
upon
drug courier
but we find
profile,
support
for our decision
from fourth
today
circuit
courier
airport drug
cases which have held that the
courier
drug
profile
other un-
plus
usual circumstances can create the
neces-
particularized suspicion
sary
Harrison,
to justify a
For
in United States v.
stop.
example,
them in Officer order to pursue testified that higher Iglesias drug offense. guilty of traffic violations, but he dismissed provides Code “[Any] person highway 46.1-189 § reck- who drives a vehicle lessly life, endanger so as to property any person guilty limb or shall be of reckless driving.” Virginia law, Under punishable violation of this 4 mis- code section is as a Class 18.2-8; 18.2-11; 46.1-1(40). demeanor. Code Code §§ § his relies a number of federal cases in Iglesias support However, distinguishable cases are all the facts those position. 448 U.S. Reid Georgia, from the facts case. In present case, a DEA sus- (1980), agent detention airport he fit certain wrongdoing pro- Reid of because pected Lauderdale, had from Fort a princi- file characteristics: he arrived he country; cocaine elsewhere in the sold pal place origin is di- in the law morning activity arrived when enforcement early minished; be try- his to the companion agent appeared they ing they traveling together; to conceal fact that were Court bags. had no than shoulder luggage Supreme other *10 reasonably held as а of law that the could not have agent matter on the basis the observed Reid of criminal of suspected activity The was the de- circumstances. at 441. evidence only specific Id. with, an- fendant’s conceal the he was traveling effort to fact that however, does not all reliance on other Id. Reid person. preclude, genera- evidence. It indicates that such profile simply more without Terry lized characteristics cannot support case, evidence of In the particularized wrongdoing. present conduct at the booth and thereafter Iglesias’s supplied unusual toll case from distinguishes the evidence which this particularized Reid. case, 82-83,
In detention Gooding, airport 695 F.2d at another agents DEA six a reasonable relied factors demonstrate upon “Gooding of ar- articulable criminal suspicion wrongdoing: York, cas- rived from New a source for he was dressed drugs; city on he telephone a 3:00 businessmen’s made a ually flight; p.m. two other arriving call after made immediately subsequently calls; acknowledged he scanned the concourse after he deplaning; mutual agents’ alleged the in an cat-and-mouse of presence game surveillance; dis- agents and two said his demeanor appeared decision, held that traught and nervous. In a two to one the court first four general “presuma- the factors were characteristics that circum- the two innocent would and that last bly persons” possess four, were first to establish stances not combined with the enough, at Id. activity.” “reasonable criminal individualized suspicion of mu- 83. While the noted that and mouse” pattern court a “cat that fоund tual suspicion, surveillance could reasonable supply The Id. did the facts that case not such pattern. establish that, demeanor” court further or anxious found “nervous although facts the be relevant to a inquiry, “reasonable suspicion” Id. at 83- case such a sufficiently did not establish demeanor. case, demeanor more 84. In this anxious was much Iglesias’s pro- through the toll Gooding’s: recklessly gate nounced than he drove in his glance he continued at rear upon seeing Berry; mirror; he of a tractor- view front pulled dangerously trailer. Smith,
Iglesias argues further States v. 799 F.2d United 1986), this should control case because the facts Smith, are agent identical. We the DEA disagree. stopped Smith because of a drug he matched certain characteristics cou- rier Smith’s car profile: travelling per miles hour at fifty a.m.; 3:00 the car two individuals occupied by approximately thirty years tags; car out of state age; opera- displayed tor was driving and when the drove over-cautiously; operator past the officer who was stationed on median failed to look strip, in the direction of officer’s car. Id. at 706. Based patrol factors, vehicle, these officer stopped believing for profile provided adequate grounds The court found stop. that these did factors provide reasonable criminal wrongdoing. The reason only particularized given stopping car, court, stated the was the failure driver’s to look the patrol Id. car. at 707. Court The held that an action is fully “[s]uch all, consistent with safety, cautious after driving: requires keeping one’s eyes objective the road.” Id. of erratic circumstances *11 driving Furthermоre, by Iglesias were not in Smith’s case. present Smith, at the time the stop occurred in the states opinion only that the vehicle The officer did stopped tags. carried out-of-state not know what it distance had Nor did he know it was a travelled. rental vehicle until after the distin- clearly made. This is stop guishable case, from the present where the officers observed a 1,000 Florida rental vehicle miles from home. Commonwealth,
Finally, in Taylor v. 6 Va. App. S.E.2d 423 (1988) (en court reversed banc), a of this majority convictions of to and with intent conspiracy distribute possession distribute, to finding that the of the defendants’ automobile violated the Taylor, County fourth amendment. In a Chesterfield police officer observed Florida rental Taylor driving defendant car northbound and de- occupant, Interstate 95. He the other Malcolm, fendant officer to be were the appearing black men to aroused, between and old. His twenty thirty-five years suspicion car four to the in his unmarked the officer followed car varied, re- car Although five miles. the of defendants’ speed to limit. the officer pulled parallel mained within the When speed car, the the “cut his toward eyes” the driver’s side of the driver Then, decreased the officer pulled parallel officer and his speed. “cut at which both the side of the car time passenger occupants The their at the officer. At this their car eyes” point, stopped. car; consented, the occupants officer asked to search Id. at 386-87, S.E.2d at were discovered. pounds marijuana 424. conviction, a court held that reversing majority of this Terry] is
“particularized
by
suspicion”
required
[as
chаrac-
drug
profile
achieved
the mere
courier
presence
of-
teristics. More
elevate
law enforcement
required
”
ficer’s
or
“inchoate and
‘hunch’
unparticularized suspicion
to a “reasonable
articulable
suspicion
person
seized is
criminal
engaged
activity.”
in
courier
no more than an “inchoate
drug
profile
[T]he
[is]
”
This
or ‘hunch.’
“hunch”
unparticularized
in
identify-
be a useful tool for law enforcement officers
more,
but,
without
ing
watched,
those who should be
closely
investigative
cannot
for an
detention.
justification
Id.
388-89,
omitted)
at
(citations
(emphasis
file was the toward the officer’s occupants’ eyes” their which the nothing supposition court found “add[ed] were because engaged activity” defendants criminal “[t] tracking alternately of an unidentified vehicle presence motor four period vehicle one the other for a defendants’ from side to de- to five explain why miles on interstate could highway fendants, officer’s in the concerned for their own looked safety, court, Thus, direction.” Id. 425. held 369 S.E.2d at *12 observa- other either nor the officer’s drug profile courier “[n] defendants tions manifestation that provided objective were, id., be, or were about to in criminal engaged activity,” the evidence seized to the should have been pursuant illegal stop suppressed. case,
In contrast to the facts of the defendant in this Tаylor, addition to several of the cou- meeting characteristics “the rier exhibited behavior more drastic profile,” “cutting than [his] barrier, eyes.” At the toll Iglesias took to avoid the observa- steps tion the officer and later he in front of a trac- abruptly pulled tor-trailer in an officer’s apparent attempt escape the police view. While “the mere observation that a traveler is nervous is not behavior,” id., indicative of criminal of a motor ve- operation hicle in such a reckless and dangerous manner to avoid the scru- tiny case, of the presence as in this combined police, with the matching of characteristics of the “drug is suffi- profile” cient to establish a reasonable of criminal We activity. find facts, that these specific and together articulable when taken inferences, with rational warranted the officer in be- reasonably lieving Therefore, that the driver was engaged criminal activity. justified Iglesias’s vehicle in order to stopping inquire about his identity and to obtain an explanation suspicious circumstances. Because the officer’s initial contact with Iglesias was constitutionally we find permissible, that the trial court did not err in his denying motion to suppress.
III. Assuming arguendo that the initial the de- permissible, fendant maintains that the encounter escalated into a immediately full scale seizure cause to requiring probable Lacking search. probáble search, cause for the he argues, the trial court should have all of suppressed the evidence We against disagree. him.
All searches without a valid warrant are unreasonable un less shown to be within one of the well-delineated exceptions the rule that a search must rest a valid v. Coolidge warrant. New Hampshire, 403 U.S. 454-55 such (1971). excep One tion is consent and the fact of in itself enough alone is not custody to demonstrate a coerced consent search. United States Watson, 423 U.S. on the Com (1976). burden is “[The] monwealth to prove the whether voluntariness of consent. And any the consent was of fact to be actually freely given a question *13 ” Lowe v. all the circumstances.’ totality from ‘the
determined
678,
112,
670,
(1977),
Commonwealth,
239 S.E.2d
218 Va.
denied,
(1978).
cert.
The uncontradicted evidence in this case establishes that Iglesias and consented to a search voluntarily intelligently weigh vehicle. All of consent the factors that bear usually upon any favor the Commonwealth. The search was not made claim of no show of force or by police; there was authority threats; no coercion and made no the defendant has claimed they mental or emotional and did not police misrepresent infirmity; fact, Watson, their See at 424-25. identity or U.S. purpose. vehicle, Iglesias first that the officers search suggested Because and he not denied the of the consent. has voluntariness warrant, the secure a valid consent to search obviates the need to Commonwealth was cause. required prove probable not
IV. imme- that, Iglesias claims even if the initial was proper, cause into which diately probable escalated a full scale seizure for required, was rather than to stop arrest reasonable suspicion was to arrest case, under the facts of this cause probable law enforce- not shown. He claims was detained three that he vehicles, weapon, ment officers in each separate displaying constituted surroundings that this show of force and other coercive arrest, ar- for an arrest. Because there was no cause probable the evi- violated gues Iglesias, his constitutional were rights dence should have been suppressed. case, including
We have reviewed the record in this the brief court, filed with the trial and find no indication that this argument was Iglesias in the trial court. made it clear that presented basis his motion that the was insuffi evidence suppression cient to to stop constitute reasonable suspicion upon defendant’s vehicle. The of the detention not scope presented to the trial we court an issue. will consider it Accordingly, 5A:18; See Rule Mounce v. Common the first time on appeal. wealth, 434-35, 4 Va. 744 (1987). S.E.2d App.
V. *14 Finally, Iglesias thе maintains that Commonwealth failed to prove beyond a (1) reasonable doubt that he knowingly and inten- tionally possessed cocaine or had (2) that he an intent to dis- tribute it. He argues that the record is void completely of any direct evidence that he knew brown in his vehicle package contained or cocaine that he intended to it. distribute
We examine the evidence in accordance with the standard set forth in Commonwealth, 352, Higginbotham 349, v. Va. 216 534, 218 S.E.2d 537 (1975):
Where the sufficiency of is challenged the evidence after conviction, our it duty to consider in the light most favorable to the Commonwealth and it all reasonable give inferences fairly deducible therefrom. We should affirm the judgment unless it from the evidence that the appears judg- ment is plainly or wrong without evidence to it. support
“The Commonwealth must
the defendant
prove
was aware of the
and
that he
presence
drugs
character of the
intentionally
them” to convict him
consciously possessed
possession
Commonwealth,
Va.
illegal
216
drugs. Andrews v.
182,
179,
812,
217 S.E.2d
(1975).
be actual
may
Possession
389, 402,
or
Commonwealth,
constructive. Peterson v.
5 Va. App.
440,
363 S.E.2d
when
(1987). Constructive
exists
possession
Andrews,
“an accused has
dominion or control over drugs.”
182,
Va. at
Iglesias occupant sole Florida, to County, his own and driven from Dade rented in name to the motor keys He also Heights, Virginia. possessed Colonial Officer by Berry, its been having stopped vehicle and trunk. After searched, in everything car was stated that Iglesias but before the with brown pack- car to him. When confronted belonged cocaine, did that he not know Iglesias age containing stated he ad- Finally, he had never seen it before. what it and that unde- $200 an mitted that he was to deliver paid package in open was found in New York. The person package termined tooth- clothing, seat bag tote the back which also contained brush, razor. when he justified disbelieving Iglesias trial court was It was
stated that did know of of the cocaine. presence him, Toler by entitled to statements made weigh contradictory 210, Commonwealth, 774, 781, (1949), 188 Va. 51 S.E.2d guilt by making and to infer he was to conceal his attempting Commonwealth, 222 Va. inconsistent Black v. explanations. 608, 610 facts established (1981). 284 S.E.2d Under the Commonwealth, finding that the the trial court was justified of the cocaine. defendant was in exclusive and control possession Therefore, turn issue to distribute. we to the of intent *15 rests
When the intent to distribute narcotics proof of evidence, pos which the defendant quantity circumstantial Monroe sesses indicate the for which is may possessed. purpose 336, Commonwealth, 154, 156, 337 4 S.E.2d v. Va. 355 App. pos ordinarily than that (1987). greater Possession of a quantity in to an be establish sessed for one’s use sufficient personal 569, 570, Commonwealth, Va. v. 213 tent to distribute it. Hunter (1973). 193 S.E.2d 780 pos- was in the exclusive that Iglesias evidence established street value a 999 of cocaine grams having
session and control of $400,000; yield it would gram quantities, when cut and sold in 4,000 experienced an According testimony to the separate sales. for officer, required was more than would narcotics this addition, cocaine In was usage. Iglesias transporting individual Florida, 1-95, recognized New on from Dade to York County, carriers, which the trial court route of and a circumstance can consider in existence an intent to dis- determining the circumstances, tribute. we hold that the record con- Under these tains to the conviction of the defendant evidence ample support for to possession cocaine with intent distribute. reasons,
For the affirm decision of the trial foregoing we court.
Affirmed. Koontz, C.J., Coleman, J., Duff, J., J., Moon, J., Hodges, concurred.
Keenan, J., concurring,
In opinion, since there no trial my evidence before the court establishing the legal significance of the “drug profile,” the match between Iglesias’ individual circumstances and pro- file characteristics did not an basis provide articulable for stopping Iglesias’ vehicle. That attached a special meaning officer to Rather, these profile characteristics is not sufficient. the prosecu- tion was for required prove attaching meaning basis such a facts, the observed as well as the reasonableness of the conclu- sions drawn. United States F.2d (4th Cir. Gooding, 1982). The Commonwealth this. I affirm failed do would Iglesias’ conviction, however, that a traffic in- finding legitimate fraction had occurred and stop pretex- that the rendered tual simply Berry’s because the vehi- subjective intent stopping cle was investigate for narcotics.
In Smith, United 1982), States v. F.2d court articulated an in- following for whether determining test vestigative stop investiga- whether an pretextual: determining tive is invalid is whether a pretextual, proper inquiry reasonable officer would have made the in the absence seizure illegitimate Id. At the original). motivation. at 708 (emphasis that, case, suppresion hearing in this defense counsel stipulated conduct, based him Iglesias’ driving could have issued traffic have summons. Berry also testified that summons could been issued lane improper change.
112 Smith, was involved stop pretextual. the court found that the
In
however,
There,
of aberrant
behavior
driving
the
evidence
only
six inches
of his lane and
was
defendent once deviated
out
that the
contrast,
the
was
lane. In
in
case
within his
“weaving” slightly
us,
so
changed lanes
Berry
Iglesias
before
testified that
Trooper
had to “slam”
its
that the tractor trailer behind him
abruptly
evidence,
objec-
this
the
was
Upon
stop
brakes.
I conclude that
to cite
subjective
reasonable even in the absence of a
intent
tively
States v.
Klinger,
a traffice infraction. See United
Iglesias for
409
Therefore,
F.2d
the
1969).
since
reasonable,
Iglesias
notwithstanding Berry’s sub-
objectively
was
narcotics,
I would
it.
jective
uphold
intent
to
investigate
Smith,
Iglesias does not contest the voluntariness in or claim that was limited gave Trooper search Berry the search conducted here exceeded the scope. While scope legitimate Iglesias’ basis for the I believe that consent oper- stop, A factual ated to the search of the automobile. similar validate Court in Schneckloth situation was presented Supreme Bustamonte, case, In that had (1972). U.S. a burned- an automobile for minor violations: stopped equipment could not headlight out After the driver light. license plate one the other occupants producеd license and produce only identification, if he could search car. Upon officer asked told, “Sure, ahead,” checks some stolen being go officer found under the left rear seat of the car. in was vol- its conclusion that the consent reaching question authorized the Court search principle reiterated
untary, Id. requirements. consent is valid and meets fourth amendment U.S., Katz v. (1967)). The at 222 358 n.22 (citing U.S. that, such, legiti- are a Court further noted consent searches work. Id. at 229. mate method of effective police Schneckloth, I believe reasoning Following employed question entitled to with the search proceed Trooper con- voluntary and received his validly Iglesias since he stopped I would con- foregoing, sent to the vheicle. Based on the serach Further, I seized. lawfully clude that the cocaine question was sufficient finding with that the evidence agree majority’s knowingly doubt that Iglesias establish a reasonable beyond distribute. cocaine with the intent intentionally possessed Baker, J., dissenting
Because the evidence contained in this record was not sufficient to justify Trooper belief that Berry’s appellant engaged in the transportation of illegal drugs, I dissent and respectfully would suppress the evidence discovered as a result of unlaw- appellant’s ful seizure. The majority concludes that since matched appellant certain characteristics of a “drug courier and since he profile” drove “recklessly,” seizure and subsequent search were lawful. In my opinion that conclusion is not by evidence supported and is contrary the prohibitions of the Fourth Amendment.1
I.
Some courts hаve noted that law enforcement officers have em-
several
ployed
of
types
drug courier
A review of some
profiles.2
of
these cases and the
derived
principles
therefrom is appropriate
here. The
“purpose
the Fourth
Amendment
not to eliminate
all contact between the
and the
police
citizenry, but ‘to prevent
arbitrary
oppressive interference
enforcement
by
officials with
”
Mendenhall,
privacy
personal
security
individuals.’
The Fourth Amendment
all
applies to
seizures of the per-
son, including seizures that
involve
a brief detention
only
short of traditional arrest. “[Wjhenever a
officer ac-
police
costs an individual and restrains his freedom to walk away,
he has ‘seized’ that
and the
person,”
Fourth Amendment re-
quires that the seizure be
As with other cate-
“reasonable.”
gories of police action subject to Fourth Amendment con-
straints,
the reasonableness
such seizures
on a
depends
balance between the
and the
public
individual’s
interest
right to personal security
arbitrary
free from
interference
law officers.
1
stop
lawful,
appellant
Had the
been
I would affirm the conviction since the dis
covered
support
finding
charged
evidence was
appellant
guilty
sufficient to
in the indictment.
2 See, e.g.,
Royer,
491,
(1983);
Florida v.
460 U.S.
493
States v. Menden
United
hall,
544,
(1980);
583,
446
1982);
U.S.
Berry,
547
United States v.
670 F.2d
600
Cohen,
558,_,
3,
State
denied,
(1985),
103 N.M.
711 P.2d
cert.
The Fourth Amendment does not require necessary lacks the level of information precise probable shrug his shoulders and allow cause to arrest to simply On the contrary, crime to occur or a criminal to escape. good be the essence of Terry recognizes that it may A brief of a work to an intermediate response. adopt individual, his or to identity in order to determine suspicious more momentarily obtaining while quo maintain the status information, light be most facts reasonable known to the officer at the time. *18 Williams, 143, (1972) (emphasis
Adams v. 407 U.S. 145-46 bar, is in the case at added). present To a seizure such as justify articul- be point specific officer must able to “[t]he which, from able facts with rational inferences together taken Ohio, facts, 392 Terry those warrant that intrusion.” reasonably in- that the (1968). requires U.S. 21 The Fourth Amendment brief, effect the be than longer necessary trusion no reasonably of the stop. purpose short of
The seizures on suspicion predicate permitting is warrant probable cause that law enforcement interests The suspect. limited intrusion on the of the personal security with the will to some extent scope vary intrusion permitted each case. This facts and circumstances of particular much, however, detention must investigative is clear: an no is to effectuate longer necessary and last than temporary investigative methods of the purpose Similarly, stop. reasonably means employed should be the least intrusive in a short available to or the officer’s dispel verify of time. period if “Thus, not be introduced
Royer,
at 500.
evidence
U.S.
were not
seizure
seаrch
was discovered means
initiation.”
for their
justification
related in
reasonably
scope
In order to of the officer’s conduct “it assess reasonableness is ‘first focus interest which necessary upon governmental allegedly justifies constitutionally official intrusion pro- ” Id. 20-21 (quoting tected interests of the at citizen.’ private Court, (1967)). Camera v. 534-35 Jus- Municipal U.S. Powell, Mendenhall, concurring tice in his in of our opinion wrote with society’s drugs: concern illegal The has a public compelling interest in those detecting who would Few traffic deadly drugs personal profit. problems affecting the health and welfare our population, our particularly young, greater cause concern than the esca- lating use of controlled Much substances. traffic highly organized conducted criminal by sophisticated syndicates. profits are enormous. And in- many drugs, heroin, cluding result, may be ob- easily concealed. As a stacles to detection of illegal conduct may be unmatched any other area of law enforcement. at U.S. 561-62. mindful,
I however, am that even with the great public interest Powell, described by Justice scheme of the Fourth Amend- “[t]he ment becomes meaningful it is only when assured that some point the conduct of charged those enforcing with the laws can be subjected detached, to the more neutral judge of a who scrutiny must evaluate the reasonableness of a search or seizure particular light the particular circumstances.” at 21 Terry, U.S. (footnote omitted). ‘good “[S]imple faith of the arrest- part ing officer is not enough.’ ... If good faith alone were subjective *19 test, the the protections Fourth Amendment would evapo- rate, and the houses, people would in their ‘secure persons, pa- pers, effects,’ only in the of at 22 discretion the Id. police.” (citations omitted). Royer,
In
the record
that
an
in-
reveals
at
two narcotic
airport
vestigating officers
drug
that
traf-
suspected
the defendant was a
”
ficker because of “the
defined
so-called
which was
‘drug profile,’
in a footnote to be “an abstract of
found to be typi-
characteristics
cal of persons
illegal
at 493
transporting
460 U.S.
drugs.” Royer,
n.2. The prosecution
reasonable,
argued
suspicion
articulable
to
existed
a
Su-
justify
Terry.
under
temporary detention
basis of
did
the seizure
the
agreed
justify
Court
but
not
preme
Rather
profile.
a
of a
courier
drug
mechanical application
determining that
each articulated fact before
Court considered
carrying drugs
for
of
suspecting Royer
existed
adequate grounds
502.
Royer, 460 U.S. at
for detaining
him.
curiam),
(1980)
(per
In Reid v.
tics
fit “the so-called
courier
thought
the DEA officers
”
Stewart,
Jus
joined by
file.’
It is a without descriptive great convenient term the Supreme Some lament the fact legal significance. so-called meeting Court has not told us whether yet to establish “drug predicate profile” adequate cause or probable either for a stop articulable suspicion
117 course, an Of has not arrest or search. Court Supreme Indeed, cannot, told us they never will. they single there is no such as a courier there thing drug profile; are is drug very infinite courier The notion profiles. protean, Mendenhall, States v. refers to it as United monolithic. “an of informally thought abstract characteristics compiled of illicit It is an typical persons carrying drugs.” simply or circum- open-ended laundry list more less suspicious оf stances, some which occur in a case. may particular of State, 1,_, v. Grant 55 Md. A.2d 526 App. (1983) 461 added) (emphasis (citations omitted); also Taylor see Com- monwealth, J., 6 Va. 423 (1988) (Baker, 369 S.E.2d App. concurring).
Because a
is
a
of
profile
many
checklist
simply
characteristics,
varying
particular
sig-
a
itself
no
profile
legal
nificance in the determination of reasonable
suspicion. Berry,
600; Grant,
at
_,
F.2d
55 Md.
Instead, the critical determination is
whether the specific
articulable facts
the particular seizure is based war-
rant the intrusion.
Thus,
Terry,
U.S. at 21-22.
a
be-
match
tween certain characteristics of a
and characteristics exhib-
profile
ited by an individual “does not automatically establish reasonable
suspicion.” Berry,
Such a conclusion does not render irrelevant necessarily characteristics listed being fact part particular profile. that an individual matches one or more of a characteristics profile the particular circumstances an justify investigative seizure. factor, some why interpreted
If demonstrate officer can merely and not experience with due for the officer’s regard was, cir- in the particular its light profile, presence issue, of as to support facts such import *21 cumstances the at was involved in individual a reasonable that an suspicion a should down- do believe that court drug we smuggling, hap- because it merely the of that factor grade importance is that we only Our holding to be pens part profile. merely or lesser weight will no assign greater characteristic on, or absent present the be because characteristic happensto the from, profile. added). at
Berry,
(emphasis
670 F.2d
cou-
drug
so-called
The
discussion of the
majority initiates its
is a
term with-
by
stating
descriptive
rier
that it
profile
correctly
at
must look
the
legal
reviewing
out
that the
court
significance,
and decide
actual
to on a case
case basis
by
observations testified
as if the
just
phrase
whether
add
to
they
suspicion,
reasonable
up
the majority
had
been coined. Had
“drug courier
never
profile”
case,
this
it would
its
of law to the facts of
applied
pronouncement
unsupported
have
the seizure of appellant
been
to find
compelled
Instead,
activity.
majority
the
by reasonable
of criminal
suspicion
at-
just
erroneously
promptly ignores
espoused
the view
drug courier profile,
taches
of a
legal significance
concept
to
a
can
stating
profile
of an individual to
matching
that the simple
a
The
then
stop.
pro-
be relied
an officer to make
upon by
opinion
matching cer-
his
ceeds to
based on
justify
stop
appellant
of
at
end of Part
a
concludes
tain characteristics of
profile,
was established
II that
of
activity
reasonable
criminal
suspicion
drug
profile.
of
courier
since
matched characteristics
appellant
not because the
The
of
justifies
appellant
thus
the seizure
majority
circum-
articulated,
light
particular
facts
and evaluated in
were of such
stances
of their
on
irrespective
presence
profile,
was in-
to
import
suspicion
appellant
as
reasonable
support
afit
the facts
volved
because
drug trafficking,
simply
in
but rather
be-
permitted
profile.
constitutionally
A
seizure
be
particular
those
it,
because
simply
cause the articulated
but not
justify
facts
drug
profile.
facts have been
as a
courier
designated
Va.
Taylor,
App.
my concurring opinion
State
Federal
S.E.2d at
I
concern that both
expressed
with
courts have
to
so
engrossed
themselves
become
permitted
from the
are
led
rea-
phrase “drug
being
profile”
they
Terry,
stops
which
officers the
make
soning
gives police
right
concern increases
persons
My
based
reasonable suspicion.
I read
of an indi-
majority
stop
here to declare that a
opinion
justified
vidual can
of a
without evi-
presence
profile
dence or
characteristics relied
explanation why
The
particular
suspicion
majority
create a
trafficking.
Taylor
profile.
continue the chase
the elusive
appears
chase worsens here as the
now declares that the
majority
profile,
without any explanation of the
of the characteristics con-
meaning
list,
tained on the
in an
sufficient
create
officer’s
experienced
mind a
en-
justifies
stopping
his
an automobile
gaged
what would
I
otherwise
be innocent travel.
appear
continue of the opinion that
not a
Terry governs,
manufactured
To
laundry list.
decide
case
whether the record in this
supports
the trial judge’s finding that the actions of the
were reason-
Amendment,
able under the Fourth
this Court must examine the
*22
articulated facts given to
justify
investigatory
appel-
lant’s automobile to determine whether those
in-
facts warrant the
trusion. Trained police officers
be “able to
and
artic-
perceive
ulate
in
meaning
given conduct
to
wholly
which would be
innocent
Texas,
untrained observer.” Brown v.
443 U.S.
52 n.2
(1979); Brignoni-Ponce, 422 U.S. at
on
884-85. The facts relied
must therefore be
the law
analyzed
light of
enforcement of-
ficer’s knowledge
Mendenhall,
and expertise.
Trooper driving suaded him to was that appellant stop appellant is, however, no car from Florida. There explanation rental distinguishes car appellant record the use of a Florida rental why attaches sig- abiding majority apparently from law travelers. Florida between mileage nificance to the distance approximate to the fails tell us how this distance relates Virginia, but to Berry also determination of reasonable suspicion stop appellant. ages twenty between the testified that be appellant appeared however, We are left with- thirty-five traveling and was alone. alone creates a sus- traveling out an male why young indication statement drug picion trafficking. Again, majority’s unsup- be couriers” is age “might such an people group Moreover, right per- individual’s by pоrted any testimony. officers enforcement sonal free from interference law security in criminal engaged cannot because he be” abridged “might seizure of a person. Such a standard cannot activity. support appellant that a cooler in the car indicated that Berry opined in this did is Nothing not wish to make articulated frequent stops. avoid record to desire of an interstate traveler that the show transporting the traveler frequent stops raises *23 the interstate upon travel illegal drugs. one chooses Presumably, during wish not to system precisely stop frequently of a because cooler in awhy the The of indication any record is devoid journey. for trav- a it not unusual signifies drugs. car the of As is presence is Court in the July, elers to automobile carry long trips coolers an is speculate why suspicious. left such activity did since Childers to, that him and testified he followed because directed appellant Berry not we not all, do know he followed testify why appellant. the testified toll passed through that as vehicle Berry appellant’s fact, booth, car, although no inside the luggage observed the of infers luggage majority rested on floor the backseat. The did see was a making because not luggage, appellant therefore, he was courier. No quick trip, indicating drug a evidence, however, was of luggage to show that a lack presented the of an compartment signifies automobile passenger quick trip, and nothing in record who make quick the indicates those are of or a trips luggage, couriers. The lack significance thereof, was No testimony never articulated the trial сourt. was offered that the bears luggage manner in which one transports to the of mention relationship trafficking illegal drugs. first that an absence luggage in the area a car means a passenger quick and trip presence drugs comes from majority; we are left to such how a conclusion reached since speculate no evidence it. One must wonder feels supports majority what the is the of an purpose automobile’s trunk.
Sufficiently the facts explained, might introduced support trooper’s suspicion criminal an justify activity investigatory However, stop. if those facts are to meet constitutional require- ments, the officer must be able to to them so meaning articulate detached, that the neutral trial determine the reasona- judge may bleness of the F.2d officer’s at 82. While Gooding, suspicion. the facts may suggest experienced narcotics officer the pres- ence of illegal drug could not average person activity detect, officer, is for the trial to decide based judge, upon whether, presented evidence in the light circum- stances, the articulated facts are of as to support such import reasonable engaged that the person stopped illegally in transporting drugs. case,
In this there was judge no evidence to the presented trial to demonstrate that relied so-called characteristics profile upon to seize ille- appellant any trafficking bore relation gal drugs. It is impossible for a of- judicial neutral and detached ficer to determine whether the was reasonable trooper’s suspicion if there nothing by indicate the facts relied why were trooper the as- If the suspicious. judge merely trial accepts sertion of the law facts enforcement officer that in his mind the created a reasonable suspicion, guarantee the Fourth Amendment that the reasonableness of seizures a neutral be evaluated *24 is breached. judicial detached officer
II. its on what relying to bolster position by The majority attempts the toll driving through gate it terms appellant’s “recklessness” fails to Again support and in a lane record making change. that he noticed testified Trooper Berry appel- view.4 majority’s a to make roll- try car to the left and he “jerk appeared lant’s there, gate toll and the itself made ing through the barrier stop testified that appel- him never stop.” Berry come to complete In a traffic violation. lant’s behavior at the toll booth constituted a “rolling fact cars attempted type stop.” he testified that other unusual, stating actions as merely appellant’s characterized Berry Appel- that did where the usual traffic stopped. not appellant his the barrier lant in the basket deposited money stopped conclu- until it bear out majority’s rose. The record does not toll reckless sion at the booth was driving that behavior appellant’s To behavior indi- merely or violated traffic laws. Berry, appellant’s officer, a of a characteris- cated nervousness in presence justify tic cannot Mere nervousness Berry’s profile. car. stopping appellant’s by ap- lane executed change The also claims that the majority being Berry supports as he was pellant pursued by Trooper he felt that testified that investigаtory stop. Although Berry warranted,5 clear change summons for an lane was improper Berry’s change part the record the lane no played from that presented appel- decision to No evidence was stop appellant. the toll lant from away had violated laws when he drove any booth, a posse cars him like yet three unmarked police pursued implies appellant where tered a booth torney he then from footnote mitted to the extreme left of the entire toll Berry, Berry suggested The was deposited 4. “. . . Moreover, majority only who appellant abruptly stood and. then away jerked improper traffic violation which was to him that a lane his toll. from where misstates standing his car only lane jerked gave the facts when it change, on his to the changed Berry his vehicle change right, extreme was stationed. Berry not reckless testimony plaza. lanes and toward the violation testified that he to the extreme left of prior left In so says after the Assistant driving that, doing, the toll entering fact, after “possible.” appellant exact felt appellant plaza. glancing at implied appellant change toll booth and then . . .” The statement moved Commonwealth entered single basket Trooper Berry, his booth, have com majority’s the booth car away At en to the side of vehicle chasing appellant’s a bandit. Upon pulling did traffic but instead any not issue summons highway, Berry he met the being informed that he was because stopped appellant of a courier. then if profile appellant narcotics asked illegal narcotics. transporting
At took following cоlloquy the preliminary hearing place between counsel and Berry: defense
QUESTION: This was a It was not a profile stop? purely for a stop traffic infraction or of other supposition activity? The sole him your basis for was in complete stopping your view met he this profile?
ANSWER: That’s correct. At the counsel to suppression hearing, defense referred this Berry testimony and asked him:
Q: didWhy answer as did in the lower court? Was you you correct, that answer were the truth in that you telling incident?
A: was, What I like felt were you probably me asking there a traffic infraction there that caused me to stop man or did you stop him on a profile stop.
Thus, Berry’s suppression confirmed his hearing testimony prelim- inary hearing testimony no traffic infraction precipitated It stop. is obvious that decision to Berry’s appellant stop based solely appellant’s matching certain listed characteristics on the police drove profile, away was made when appellant from the toll Any booth. other conclusion is with the reali- at odds ties of the case and common simply strains sense. A claim that the stop was based upon change is a alleged improper simply lane pretext for what actually afterthought an happened, obviously prompted add to the lack prosecuting attorney’s to attempt of evidence upon to seizure of justify appellant.
In determining when an investigatory unreasonably stop pretextual, whether an have validly officer could theoretically stopped the for car a not determina- possible traffic infraction is tive. The actual imma- subjective similarly intent the officer is for pretext terial. A violation becomes traffic stop possible secretly “not the officer because Terry-stop an or investigatory offense, because it find evidence of a but hoped greater to [is] pursuing clear an would been uninterested officer have Smith, v. F.2d United States lesser offense absent hope.” 1986). was never interested (11th Cir. Trooper violator; alleged stopped appellant traffic rather pursuing because, in he fit some of the characteristics solely his opinion, attempt justify listed on his courier profile. legiti- “was alleged merely traffic violation pretext Miller, 821 F.2d mate United States the impermissible stop.”6 Smith, at 711. 1987); 799 F.2d based upon When we allow investigatory stops proceed Fourth Amendment re- reasons we further violate the pretextual reasonably that the nature of a seizure be quirement scope related its justification. were
The manner in which the seizure and search con- is, course, ducted as vital a whether part inquiry *26 they were at Fourth Amendment proceeds warranted all.'The as governmental much limitations the ac- by scope upon tion en- as its initiation. The by imposing preconditions upon tire seized in excluding deterrent of the rule evidence purpose of the on the assumption violation Fourth Amendment rests to limit that “limitations fruit to be tend upon gathered the Thus, the not be introduced if itself.” evidence quest search which were discovered means of a seizure and by not in their reasonably justification related the scope initiation. “If were
Terry, (citations omitted). per- 392 U.S. 28-29 officers at could mitted what conceivably to conduct based Terry-stops upon violations, the give traffic rise reasonable minor scope and its justification connection between a seizure’s necessary Smith, would F.2d at 711. necessarily unravel.” 799 alleged significance traffic Attorney recognized also the true General change us asked argument rely upon but violation did not the lane and in before this Court pur Trooper Berry prior his solely perceived by to affirm the conviction based on facts appellant. suit of
III. I this war recognize great against interest in nation’s public illegal I in trafficking in narcotics. concur Justice Powell’s obser- vations detecting has interest in public compelling illegal who profiteers drugs, problems deal and further that few health welfare affecting the and of our population, particularly Mendenhall, our 446 U.S. at cause us young, greater concern. is, 561-62. As war important winning it the fighting courts not Rights must their decisions the Bill of by repeal guarantee continued free society.
Because the record an lacks con- explanation why trooper cluded that car appellant’s may have been contra- transporting band, I am the opinion vehicle was stop appellant’s justified articulable specific, facts sufficient to rise to a give reasonable suspicion conduct, of criminal and further that the stop cannot be justified traffic allegation of violation. There- fore, the was an unreasonable seizure prohibited by Fourth Amendment to the Constitution States and United I, Article Section 10 of the of Virginia Constitution and violative of rights guaranteed to both the innocent The seizure guilty. unlawful, being consent search is invalid and the use of evidence discovered as a result of the is prohibited. Royer, search 507-08; Zimmerman, U.S. at 234 Va. at S.E.2d 710. Without such evidence the record does not support appel- lant’s conviction. I
Accordingly, would reverse the judge of the trial judgment denying conviction, the motion to suppress subsequent dismiss from appellant further prosecution.
Benton, J., Barrow, J., with whom joins, dissenting. Commonwealth, This Court recently held Va. Taylor *27 384, App. 369 S.E.2d reasonable, 423 sus- (1988), that articulable picion illegal that narcotics are rest being cannot transported solely the fact that a traveller a drug profile. matches courier 388-89, Id. at 425; 369 448 S.E.2d at Reid v. Georgia, see also 438, U.S. (1980). 441 A belief that seizure on a premised solely an individual matches drug a courier violative therefore profile 388-89, of the fourth Taylor, amendment. 6 Va. at App. in Taylor, than that majority S.E.2d 425. a different Today, is distin- Taylor in that suggest the dissenters including Taylor, for deciding a basis and not guishable controlling principled disagree this case. I and dissent.
In a under fourth order to seizure support legitimate individ- particular focused on the “suspicion amendment must be 670 F.2d Berry, ual seized.” United States v. Commonwealth, 609, 612, 363
1982); 234 Va. see Zimmerman he fit because (1988). Iglesias stopped solely S.E.2d . . . on the drug profile courier The profile. focus[es] “[neither] . . in every at issue . indicate circumstances particular [n]or [s] some who to match of the case that a individual specific happens sufficiently is involved actions vague characteristics profile’s fact, F.2d at 601. In Berry, as to suspicious justify stop.” acts of characteristics relationship profile specific cannot be is an whose answer criminality empirical question from this record. gleaned record officers ob-
There is no evidence on this that served their own suggested light experiences, conduct that of and not because of the existence merely profile, Furthermore, the officers have not ar- Iglesias carrying drugs. this would a basis for any provide ticulated on record conduct that a trier such seizure upholding of fact draw a conclusion. ignores Taylor. the basic majority precept the mere is not achieved suspicion” “[Particularized re- More is presence characteristics. profile a law officer’s “inchoate quired elevate enforcement ” ‘hunch’ to a “reasonable unparticularized suspicion or engaged seized is person articulable criminal activity. this case relied on in characteristics which the officer sus-
were insufficient to
a reasonable
articulable
support
drugs.
illegal
in fact
picion
the defendants
possessed
years
Black or
males from
Hispanic
twenty
thirty-five
registered
in Florida
age driving northbound on Interstate 95
inno-
cars
large category
presumably
rental
constitute
rela-
no
cent
These
have
apparent
travelers.
characteristics
in this
is no evidence
to criminal
and there
tionship
activity,
character-
these
record of an
between
relationship
empirical
*28
Thus,
profile
behavior.
istics and criminal
unparticularized
an “inchoate and
no more than
provided
”
useful tool for
“hunch”
be a
or ‘hunch.’ This
suspicion
who should be
those
identifying
law enforcement officers
but,
more,
justification
cannot be the
watched
without
closely
for an
detention.
investigative
388-89,
omit-
(citations
at
Taylor, Va. App. asserts, it ted). In the majority order to reach the conclusion that as a of is to assume the of the necessary validity profile predictor “is particularized profile hazy criminal Because the activity. form, great entirely specu- and almost susceptible adaptations, lative,” 1413, Sokolow, United States v. 831 F.2d in the is 1987), grounded equally conclusion that is any profile speculative.
I facts of agree with all of the discussion and of the analysis this case contained in Baker. dissenting by Judge opinion However, to the legal dissenting opin- extent the discussion in his ion Taylor acknowledges disavows the of holding introduced “[sufficiently might support facts explained, trooper’s investigative of criminal suspicion activity justify I stop,” give cannot assent. my
Law enforcement officers in
have been
with
our State
provided
a drug courier
some other law enforcement
profile
developed
and have been instructed to
vehicles
entity
survey
393-94,
Commonwealth,
meet the
at
Taylor v.
6 Va.
profile.
App.
However,
369 S.E.2d
(Cole,
assessing
J.
dissenting).
whether a
criminal
particularized
ongoing
activity
of
suspicion
seizure,
of the
supports
the focus must be
whether actions
upon
particular
subject
an involvement
in a
“betrayed
developing
Sokolow,
crime.”
Absent evidence that the profile, has the general population, by large segments teristics shared rote statement officer’s reliance predictive validity, as a justifica- was compiled premise upon profile Terry. to the contrary principles tion for a traveler stopping *29 suspi- to establish particularized Not does such fail only testimony it is also in- cion, but, hypothesis, based an being upon unproved unreliable. herently case, activiiy on criminal the traditional focus
In this type the individ- characteristics of shifts to a focus on the personal this transfer of focus imper- under Not is scrutiny. only ual Here, of- missible, an is often uncorroborated. its accuracy behavior, otherwise ficer must that a testify pattern behavior, in a significant does not exist as innocent explicable about his The officer testifies not number of innocent people. but instead activity, own of a criminal trained observation exhibit generally about the that couriers probability the Unfortunately, testimony characteristics. certain external Empirical in that extended a fashion. seldom is constructed that, for for the assertion documentation would be necessary nervous, travelers to cash-paying the class of example, of innocent per- Miami does not include numbers significant the reasonableness sons. The court is left to evaluate not ongoing demonstrating an officer’s assessment facts (compiled evidence criminal but the enterprise, probabilistic “inno- that court) the that indicates from cases not before cent” behavior is not so innocent.
[*] [*] [*] demonstrates The of the very transmutability profile focus When the seizure. fails to a Fourth Amendment justify activity criminal ongoing from facts away indicating en- may in which criminals instead innocent behavior suspicion. “reasonable” gage, virtually anything support Sokolow, 1420. F.2d at United States v. in stopping officer justified
The concludes that the majority drastic than” he behavior more the defendant because “exhibited As Baker’s dissent Taylor. Judge by suspects exhibited conclusion. Fur- out, facts do the majority’s points support how, its thermore, under inter- fails to even majority explain facts, officer is behavior” which the “exhibited pretation criminal alleged ongoing have detected created a suspicion rise the level of an officers did not above suspicions The activity. ” Reid, or ‘hunch.’ “inchoate and unparticularized U.S. 442. at to pro- evidence in the record belies after-the-fact attempts
vide a No on this record lawful for the evidence justification stop. time to evade the assertion that at supports Iglesias attempted any a traffic law enforcement or that committed in- authorities out, Again, Judge points fraction. Baker’s dissent the assertion did evasive or sus- majority Iglesias something opinion record. picious at the toll booth unsupported by is simply The evidence from Iglesias away establishes that after drove toll plaza, at least three officers ran from their observation posts the toll their Iglesias’ vehicles in order plaza pursue vehicle. whose vehicle “runs little better than Berry, unmarked [Agent vehicle],” Jones’ first reach de- Iglesias. Berry *30 scribed occurred his what as he closed distance between un- marked and Iglesias’ vehicle vehicle:
When I close within 75 got enough, yards about up say him, he was and a tractor driving the left lane was passing sudden, lane in right trailer. All of a he went over into the front of the trailer. had to on his brakes. I The trailer slam myself my wasn’t marked car. That raised operating for suspicions getting just driving out of when I’m my way, car. every day him; did more- Berry that to evade testify Iglesias attempted over, so, when the shoulder of signalled Iglesias do onto pulled Jones, Iglesias, who and also highway stopped. Agent pursued arrived at the scene in after had Iglesias stopped his vehicle legal exited at the travelling his vehicle. was Iglesias Because hour, to infer speed fifty-five limit of miles is reasonable per concerning from the of Jones’ and Jones’ comments timing arrival was driv- the speed Berry in relation to his that Berry’s vehicle 130 came be- up his unmarked vehicle rate of
ing
high
speed
estab-
testimony
own
Berry’s
hind
vehicle.
Iglesias’
Significantly,
way”
out of
“getting
lishes that
Iglesias
simply
[the]
lanes.
changed
fast
vehicle when he
moving
Berry’s
conclusion
fails to
Similarly,
support
majority’s
record
in-
committed a traffic
because Iglesias
that the
justified
that
testified
Berry
fraction.
was not issued a traffic ticket.
Iglesias
Signif-
infraction.
Iglesias
he neither
nor cited
for a traffic
stopped
during the trial:
Commonwealth’s
stated
icantly,
attorney
make a profile stop
wanted to do was
time[,]
all [Berry]
“[A]t
and not issue a
summons,
illegal activity.”
there was no
because
to issue a ticket
right
evaporates
The assertion that
had a
Berry
that
inference
inescapable
of those statements and the
light
to clear the
into
lane in order
Iglesias
right
moved his vehicle
his rear.1
fast
from
approaching
lane for the vehicle that was
invalid as
investigative stop
whether an
determining
“[I]n
reasonable officer
is whether a
pretextual,
proper inquiry
moti-
illegitimate
would have made the seizure in the absence
Smith,
Cir.
(11th
F.2d
vation.”
States v.
United
Miller,
F.2d
States v.
1986); see also United
in the
Iglesias “glanc[ed]
own
that
1987).
testimony
Berry’s
unmarked, fast
“getting
way”
mirror” before
out
[the]
him
the reasonable
vehicle as it closed behind
moving
provides
assertion that the
change
negates
for the lane
explanation
did not
could have issued a traffic summons. The “stipulation”
Contrary
stipulate
that
to the assertion in the
Iglesias’ driving
conduct
concurring
provided
opinion by
a basis
was made
Keenan,
during the
J., defense
following
lawfully
counsel
examination of Berry:
taking
that
into consideration
COMMONWEALTH’S
ATTORNEY: Now,
endangered
taking
change
lives,
where he
into consideration the
lane
people’s
abrupt
—
in your opinion
endangered
Judge,
any
DEFENSE COUNSEL:
is not his testimony
lives.
people’s
his
to slam on
the truck had
COMMONWEALTH’S
ATTORNEY: He said
brakes. THE COURT: That’s what he said.
issued him a summons
Could
have
COMMONWEALTH’S
ATTORNEY:
you
a traffic violation?
*31
could
Judge,
one. He
could have issued
DEFENSE COUNSEL:
I’ll stipulate they
have walked over and issued him one.
power
do
how-
so;
had the
could have issued
because he
ticket,
Berry quite obviously
right to
objective
and Berry’s
reasonableness of the
ever, the issue to be resolved is the
issue a ticket.
lane
reasonable basis for the
change
stop.
provided
objectively
that he had
Berry’s testimony negates any suggestion
probable
cause or that there in fact existed
cause to believe that a
probable
evidence, thus,
traffic
no ba-
violation had occurred. The
provides
sis
which to conclude that “a reasonable officer would have
made the seizure in the absence of
motivation.”
illegitimate
Smith,
Finally,
response
suggestion
Judge Keenan’s
ring
that the consent to search was
it should
opinion
voluntary,
be
noted that the trial
made no
judge
finding
has
this record that
Bustamonte,
Iglesias’ consent
See
Schneckloth
voluntary.
218,
(1973).
U.S.
248-49
Nor could such a
finding
sup-
the facts of this case. “When
ported by
trying
establish that
there was a
illegal
consent after an
voluntary
stop,
[Common-
has a much heavier burden to
than when the con-
carry
wealth]
Ballard,
given
sent is
after
States v.
United
permissible stop.”
913,
573 F.2d
(5th
Cir.
1978).
discharging its burden the
act,
Commonwealth must establish
claimed
voluntary
consent,
alleged
an act of free will to
“sufficiently
purge
States,
taint”
primary
of the
Sun v.
illegal
Wong
seizure.
United
Recalde,
371 U.S.
(1963);
United States v.
761 F.2d
1985).
The record in this case fails to es-
and, indeed,
tablish
could not establish that the consent was free
from the taint of the illegal seizure. The
temporal proximity
illegal
“consent,”
seizure and the
the lack of
circum-
intervening
stances, and the
purpose
law enforcement of-
flagrancy
ficers all lead to the conclusion that the
between
causal connection
the illegal seizure and the
See
“consent” remained unbroken.
Recalde,
For these reasons I would reverse the conviction and dismiss the indictment.