*1 Richmond MARGARET MARY LIMONJA and RAYMOND JAMES BROOKS COMMONWEALTH OF VIRGINIA
No. 1230-86-2 Decided December
Counsel for brief), appellants.
Marvin D. L. on (Thomas Barney, Miller Terry, Sue (Mary General Eugene Attorney Assistant Murphy, General, brief), Attorney appellee.
Opinion COLE, James Brooks Margaret Mary Raymond J. were convicted in a bench trial of of cocaine with intent possession On the seizure of their distribute. contend that appeal, they car, vio- the search of their and their extended detention persons, lated to them under the fourth and fourteenth rights guaranteed We disagree amendments to the United States Constitution.
affirm.
I. We review the evidence in most to the light favorable Commonwealth, inferences de granting fairly to it all reasonable without a sitting ducible therefrom. The of a trial court judgment is entitled to the same as a verdict and will not jury weight jury set aside evidence that the judgment unless it from the appears Commonwealth, or without evidence to it. Martin plainly wrong support 438, 443, (1987)(cit
4 Va. 358 S.E.2d App. *3 ing 8.01-680). Code § 17, 1985,
On November Thomas C. Keith of the Trooper in Virginia State Police was Interstate 95 an unmarked patrolling vehicle near the Walthall exit. He observed the defendants travel- the ing indicating north in a car with a Florida license plate vehicle His suspicions was a rental car from Dade County. check, aroused, all run a license but Keith Trooper attempted time, of Keith in Florida were down. At this computers radioed for a a narcotics backup. thereafter, at an sign
Soon through the defendants drove Keith pulled automatic toll booth without the toll. Officer paying Keith as a joined them over at 12:20 Officer p.m. Dempsey drivers’ li- defendants’ backup. Keith asked for and received the card. registration censes and the in agreement place rental driver, Limonja, These checked He to the explained satisfactorily. toll that he had she had run the automatic her because stopped had done she why booth without When asked stopping paying. so, dime, exact the required she that she did not have a replied noticed, car, Keith of the change. From his outside vantage point on radar detector to his “a according part testimony, seat.” On cross-examina- other side of the vehicle in the passenger not did tion, of it” but see a portion Keith stated that he “could know what it was. “exactly” Florida, rented in had been determined that the vehicle
Having vehicle, in the luggage that the driver was Hispanic, on the passenger’s view partially and that a radar detector vehicle, vehicle, to search the Keith asked permission side of the de- When the drug trafficking. individuals of the two suspecting search, Limonja Keith had both fendants consented to a rear where would they Brooks exit the vehicle and move to the he stated that was “posi- from traffic.” Officer “away Dempsey see that did not looking tioned at side of the occupants get passenger compartment hit.” Keith to search proceeded and trunk. search, took the course of the Keith
During possession He also front seat. right passenger radar detector behind the dash. located on the ashtray found a dime and four nickels trunk, gift In the found suitcases and a wrapped package. Keith luggage belonged Keith asked Brooks and which piece The suitcases were luggage. to them. each identified their They searched but found. Keith then asked nothing unusual was whom Defendant Brooks gift belonged. wrapped package stated that it to neither of them and that he was deliver- belonged ing it for a friend. was addressed to thought the package name, Brooks’ it was addressed “Ray,” first but Brooks said that was inside he said that he did not know what “Roy.” Although it, the label Brooks stated that he had written placed Keith, it was although to the package. According testimony both sweat under a hot Brooks “broke out in a day, heavy I arms and “once took while we were about the talking package” car, . . . Mr. front of package my and had it set on the eventually Brooks had Brooks his mind on that strictly package.” signed a written consent to open package. *4 re- again Keith after the vehicle was Officer
Shortly stopped, a narcot- the State Police communication center to obtain quested dog ics own narcotics dog. When the discovered their dispatcher available, County police, was not he contacted the Chesterfield to ob- in an effort Petersburg jurisdictions and other area arrive, dog tain a narcotics for the narcotics dog. waiting While p.m., at 12:48 Brooks withdrew his consent to search the package did. dog that he what the narcotics saying wanted to wait and see At 1:10 p.m., dog narcotics from Chesterfield arrived County on the scene. minutes had Approximately fifty elapsed. dog, canine, an experienced drug detection on the alerted package. Keith then explained to Brooks what had occurred. Brooks asked Keith: “What if I don’t let happens you In open package?” to the response then to him that question, “explained [he] would have get a search warrant it since the open consented, hit on it.” Brooks then stating that the was not package his and he did not know what was in it.
Keith had which was covered difficulty opening package with electrical Brooks a nail file to assist him. tape. provided As the package was being Brooks “What if it’s a opened, inquired, radar detector?” The consisted of package gift wrapping cardboard box bearing markings Micronta Road Patrol XK radar detector device which was the same make and model num- ber of the radar detection device found earlier and served as a basis for the radar detection violation. When Keith opened substance, he package, found a white powder deter- subsequently mined to be of cocaine approximately grams of 82.2 percent purity. Both defendants were then arrested. The time of the ar- rests was 1:20 p.m. Another search of Brooks’ suitcase disclosed an additional 300 grams cocaine of 78.4 percent purity.
After opening the package, additional time was taken at the scene to search the baggage of the and to make parties provisions for the security their vehicle. Officer Keith left the scene at 3:30 approximately to the office. p.m. go magistrate’s Finding the magistrate Keith had to wait. The arrest war- extremely busy, rant on the drug charge and the traffic citations had been (which written at the scene defendants) but not issued to the were finally processed and executed 4:00 upon p.m. the defendants between and 6:00 p.m. trial,
Prior to evi- and Brooks moved to all suppress dence obtained was ille- incident to the stop, contending gal because it reasonable was not based cause or upon probable and articulable the motion to suspicion. objection, sup- Over their press denied.
421 II. and Brooks admit that the could law-
Although Limonja police them for the automatic toll booth fully running stop have stopped it for the sign, claim the because was stop pretextual of crimi- conducting illegal investigation an purpose suspected nal As that the activity. proof stop pretextual, they point occurred at 12:20 that the traffic sum- the fact that the stop p.m., that, the interim during mons was not issued until 4:30 and p.m., in- focused their attention contraband period, police upon that, of this unlawful vestigation. maintain as a They consequence conduct, all of the acts are tainted the initial al- subsequent by leged illegality.
The Commonwealth asserts that in justified for its failure to at the stopping stop defendant’s vehicle stop sign violation of Code 46.1-1731 and failure to the re- pay § Further, quired toll in violation of Code it main- 33.1-345(8).2 § tains that unless the defendants can demonstrate that the police do not ordinarily through who run and toll stop people stop signs booths, claimed. can be pretext objective is the of the reasons for the sufficiency stop
test for whether determining Police actions pretextual. are to be tested “under reasonableness objective a standard of without regard to the intent or motivation of the of underlying States, 128, ficers involved.” Scott v. United 436 138 (1978)(footnote omitted). states, pertinent part: Code 46.1-173 § Highway Transportation may classify, designate A. The State and Board and mark state highways provide system marking signing highways and a uniform under the and such
jurisdiction
obey
comply
of this Commonwealth ....
The driver of a vehicle shall
requirements
signs
Highway
upon
authority
with the
of road
erected
the State
Transportation Board.
comply
obey
signs, signals, markings
lights
C. The
failure
such driver to
or to
such
provisions
with the
of this section shall constitute a traffic infraction.
33.1-345(8) provides
pay
Code
a Class
that fialure or refusal to
a toll constitutes
§
unknown,
1 misdemeanor. For reasons
Officer
did not
defendant
arrest
so,
compartment
this
passenger
offense. Had he done
a warrantless search of the car’s
any
justified
containers
York v.
therein would have been
as incident to an arrest. See New
Belton,
United
*6
has occurred
Amendment violation
1977). “Whether a Fourth
light
officer’s actions in
assessment of the
objective
‘turns on an
time,’ and not
confronting him at the
facts and circumstances
the
challenged
the time the
actual state of mind at
on the officer’s
463,
Macon,
470-71
472 U.S.
Maryland
action was taken.”
136,
Scott,
n.13).
deter-
at
138-39
436 U.S.
(1985) (quoting
“[I]n
the
invalid as pretextual,
is
mining
investigative stop
whether an
have made
officer would
is whether a reasonable
proper inquiry
motivation.” United
of illegitimate
the seizure in the absence
in
Smith,
704,
Cir.
(11th
1986)(emphasis
799 F.2d
States v.
original).
Commonwealth,
512,
In Horne v. , and murder investi was a in a (1986) suspect rape the defendant misdemeanor outstanding of two gation. When the learned police in him, but charges him on those against warrants arrested investigation. and murder concerning rape him terrogated argued defendant confessed. On appeal, defendant evidence all and therefore pretextual misdemeanor arrests were 514-15, 339 Id. have been suppressed. derived therefrom should disagreed: Court Virginia S.E.2d at 188. The Supreme of war- the basis acting the officers though [E]ven the motive rants, us analyze would have [the defendant] unworkable. would be such an approach We think police. case car. In every in judge every squad It would require look warrant, have to court would to a an arrest pursuant ask, really is he “Why police, over the shoulder of the subjective approach reject We this arresting this person?” executing officers were where the a case such as this warrants. fide,” bona the arrest at 189-90.
Id. at
339 S.E.2d
“[I]f
use
coordinated
Court,
make preplanned
held
“the
can
police
about
of the arrest to
them the
to ask
give
opportunity
questions
does
exist.” Id. at
matters for which
cause to arrest
probable
517,
The same when a traffic infraction rather than reasoning applies an arrest is the basis for the It is either case stop. inappropriate Rather, to officer. to determine the true motive attempt test is whether a reasonable officer would have made appropriate the seizure. case,
In the
had the
the mo-
present
police
authority
stop
tor
failing
vehicle for
at a
in violation of Code
stop
stop sign
46.1-173(C) and for
toll in violation
failing
pay
required
§
of Code
33.1-345(8). We believe that
reasonable
of-
any
§
ficer who observed such
have seized that
conduct would
individual
and issued him a citation or an arrest warrant. See McCambridge,
III. The Commonwealth justifies further the extended detention the basis of they consent. The defendants contend that the consent gave was obtained coercion and that the Com- by and deception, did monwealth not meet its burden of the consent proving were never freely given. ap- claim that voluntarily They they of their to or refuse search. prised right leave the scene to
Where consent is and voluntarily given, probable freely v. cause and a Schneckloth search warrant are not required. Bustamonte, 218, cor (1973). 412 U.S. The defendants are 219 rect in asserting that the burden is on the Commonwealth prove Commonwealth, the voluntariness of v. 218 Va. the consent. Lowe 670, 678, 112, denied, 239 S.E.2d 435 930 (1977), cert. (1978). of fact Whether the is a freely given question consent was to be Id. determined from “the of all the circumstances.” totality The deter voluntariness of of fact to be the consent a question mined unless by the trial court and must be on appeal accepted 260, 268, Commonwealth, 220 Va. Stamper erroneous.
clearly denied, 808, 445 U.S. (1979), cert. 257 S.E.2d standard to Schneckloth, established the Court Supreme In voluntariness of a consent: determine and the custody of a search is not subject [W]hen consent, basis of his a search on the justify
State
attempts
it
require
the Fourth and Fourteenth Amendments
voluntarily given,
was in fact
demonstrate that the consent
coercion,
or
express
implied.
and not the result of duress or
from all
is a
of fact to be determined
Voluntariness
question
circumstances,
knowledge
while the subject’s
account, the
to be taken into
right
prose-
to refuse is a factor
knowledge
such
as a
is not
to demonstrate
required
cution
consent.
establishing
voluntary
prerequisite
The evidence in this case adequately to a consented intelligently and Brooks Limonja voluntarily ve the defendants’ search of vehicle. Officer Keith approached he had them because stopped hicle and to them that explained Keith toll booth. At that point, had run the automatic operator defendants gave to search the vehicle. Both asked for permission them exit consent, Brooks. oral first and then to be from traffic. away the car and stand to the rear in order by police; claim of any authority search was not made upon threats; no there were there no show of force by police; nor infirmity or emotional the defendants have claimed mental as to no deception disclose and there has been any; does the record Furthermore, Officer on behalf of the identity police. purpose amend fourth the defendants Keith’s failure to inform render does not refuse consent ment or their right protections Watson, 423 U.S. States v. United involuntary. the consent 425 (1976). deception, coercion and defendants claim
Although the *8 to support record facts in the have not pointed any specific on deception coercion or these conclusions. There is no evidence obviates to search consent Because a valid part police. necessary warrant, it was cause or a the need for probable to search. cause probable the Commonwealth to prove IV. valid, was even if the traffic
The defendants contend that should have they should have been issued the traffic citation that when the argue po- on their go way. They been permitted of time without proba- them over an extended period lice detained contents, exceeded its they their car and ble cause and searched of the stop, requiring and the authority purpose of their scope search. as a result of the of the evidence seized suppression for the cause Commonwealth does not claim probable standards search, upon but the continued detention justifies Ohio, The Common- 392 U.S. Terry announced in based suspicion reasonable possessed wealth claims that the police the time facts to the detention justify beyond articulable upon Further, the Common- to issue the traffic summons. necessary be- detention was justified wealth maintains that the extended cause consented to it. voluntarily the defendants find the oral con-
As stated in III of this we opinion, part Written given. sent to search the car was freely voluntarily but gift consent was to search the given wrapped package then consen- was withdrawn 12:48 Because the detention was p.m. must be considered sual until that thereafter point, only delay unreasona- in whether of the detention was determining length between with- ble. minutes twenty-two elapsed Approximately on alerted drawal of Brooks’ consent and when the narcotics the package. was
At the
consent to search the gift-wrapped package
time
some
withdrawn,
matched
knew that the defendants
ab-
informally compiled
courier
an
drug
profile,
criteria of
typical
has shown are
stract of characteristics that experience
driving
were
the defendants
persons
drugs: (1)
illicit
transporting
traveling
Miami;
(2) they
a Florida rental vehicle from
1-95,
Florida
north
traffickers from
drug
a known route of
car,
northeast;
one of whom
were in the
(3) two persons
Further-
seen in the vehicle.
(4)
luggage
Hispanic;
more,
of a radar
knew that the defendants were
possession
Defendant
detector in violation of Code
46.1-198.1.
§
fact,
did,
booth;
she
lied
the toll
running
about her reason for
*9
Brooks
very
exact
Defendant
became
change.
have
required
when the gift-wrapped package
nervous and sweated heavily
discovered,
to
and,
he
it
addressed
although he said
knew that
it,
his and
he said it was not
because he
the label
“Roy”
placed
that
combina-
he did
know
was in it. We find
this
that
not
what
reasonable suspicion
tion of articulable facts
the officers
gave
ended.
the detention after the consensual
justify
bounds of
The defendants contend that the
exceeded the
minutes.
detaining
an
them for over
investigatory stop by
sixty
Thus,
defendants,
to arrest was
argue
required
cause
probable
exist,
must
suppressed.
and since it did not
evidence seized
be
any
However,
stated,
minutes
the detention
just
twenty-two
as
only
consent,
were without
as
defendants contend.
sixty,
. . determining
is
for .
“[Tjhere
litmus
test
paper
[no]
stop.”
when a
exceeds the bounds of an investigative
seizure
Florida,
491,
Court
v.
460
506
Royer
U.S.
Supreme
a
limit for
has refused to
“hard-and-fast
time
a
adopt
permissible
675,
(1985);
686
Terry
United States v.
470 U.S.
stop.”
Sharpe,
696,
Place,
n.10
“Much as
(1983,).
United States v.
462 U.S.
709
desirable,
an
a
line’
would
whether
‘bright
evaluating
rule
unreasonable,
is
sense and ordi
investigative detention
common
rigid
Sharpe,
human
must
over
criteria.”
nary
experience
govern
In too duration assessing whether a detention is be considered an we consider it investigative stop, appropri- means ate to diligently pursued examine whether the police sus- dispel that to confirm or their investigation was likely detain time picions during necessary which it was quickly, the defendant.
Id. at 686. forty- test, have detentions
Using the
courts
foregoing
upheld
893,
(7th
901
minutes,
Davies,
F.2d
five
v.
768
United States
minutes,
denied,
United
Cir.),
(1985); fifty
cert.
474
1008
min
958,
sixty
1987);
States v.
964
Cir.
(4th
816 F.2d
Alpert,
636,
1984);
utes,
(8th Cir.
729 F.2d
639
United States
Large,
320,
Alaska
(D.
F.
325-26
United States v.
627
Campbell,
Supp.
min-
1985),
1987);
seventy-five
Cir.
aff'd,
(9th
The defendants’ reliance United States v. 462 U.S. upon (1983), Place, In the Court misplaced. found that the po- lice had not “diligently pursue investigation” because [d] LaGuardia, “knew the time of Place’s scheduled arrival at ample time for their arrange additional investigation location, and thereby could have minimized the intrusion on case, Fourth Amendment interests.” Id. at In our 709. [Place’s] however, as in United States v. Quinn, 815 F.2d (1st Cir. 1987), there was “no way agents could have greatly *10 shortened their if were inquiry they to ‘confirm or their sus- dispel Place, picions’ case, the meaningfully.” Unlike in this police, not been defendants, investigating the had not the en- anticipated counter, and could not have dispelled more suspicions quickly. cases,
Even in airport courts have recognized that there is no requirement that narcotics dogs be maintained at the so airport as to be “immediately 314; available.” 766 F.2d Borys, see 816 F.2d Alpert, at 964. just It is as clear that there be inevi- will table delay a obtaining dog to sniff luggage trans- packages ported If, case, interstate highways. as in this the officers make a diligent effort to obtain a dog, during continued detention does delay Therefore, violate the constitution. Place applying and Sharpe, we find that the detention did not exceed the permis- sible bounds of an investigatory stop.
V. Finally, the defendants contend that Brooks’ consent to open the package was not freely but rather was voluntarily given the result of coercion and This without deception. contention is merit. When the narcotics dog alerted on the package, probable Race, cause to (1st search existed. United States 529 F.2d Cir. 1976). consent, Officer Keith told Brooks that if he did not Keith could get a search warrant. Keith did not misrepresent Brooks, situation to and no evidence exists that of the other any factors consent, negating III of this voluntary as discussed part Therefore, we consent find that
opinion, present. search the and the evidence gift voluntary wrapped package admitted into pursuant obtained the search was properly evidence. stated, of the trial judgment
For reasons we affirm the court.
Affirmed. Duff, J., concurred.
Benton, J., dissenting.
I affirming majority dissent. In this conviction the respectfully cause, seizure, sanctions a based than probable warrantless on less trunk a traffic during removed from an automobile package of further holds that because the stop. majority occupants for drug automobile fit a could detained a courier profile, sought officers substantial of time while law enforcement period narcotics. locate for the purpose sniffing package Because in detaining the conduct the law enforcement officers intrusive, I occupants unnecessarily unreasonable would hold that a fourth amendment violation occurred I would and detention. suppress the fruits of the unlawful seizure
A full to disclose the purpose- account facts is necessary fulness of the officer’s the illegality conduct and demonstrate and the extraordinary package occupants detention of *11 the Keith automobile. The facts that State Thomas Trooper show Florida was in an when he saw a patrolling unmarked vehicle deter- rental Keith automobile north on Interstate 95. traveling Margaret Mary mined that the its two occupants, automobile and Brooks, driver, cou- Limonja, drug and fit a the James Raymond auto- rier indicate that the profile. Although evidence does not limit, began “pac- mobile was Keith exceeding speed Trooper get . . ing” the automobile he was . “trying because for a check ticket.” He also called his speeding dispatcher number; was however, license plate system computer record left them,” he the automobile Before a on working. “got pace the auto- that the interstate because he believed highway. Solely the automobile. mobile fit followed drug a courier Keith profile, went to as it He the automobile parked his vehicle and observed gas one station that was closed and then another that proceeded for Keith while open business. waited watched went to got gas the restroom and Brooks and checked the oil.
Keith contacted State while he was Dempsey watching Trooper the automobile. He told that he was an observing auto- Dempsey mobile drug that fit a and that he “was wait to see profile going if could a who was get pace driving them.” a Dempsey, [he] vehicle, marked state to him that he was coming indicated to that location.
Keith followed the when it left station. gas automobile He testified that in between the the car left the time that “[s]ometime Exxon station” and before it the toll to enter the gate reached he highway dog. decided call for a narcotic’s detection He told Dempsey that he wanted a far as knew the [he “[a]s request for dog] was made by Dempsey” before Trooper Limonja drove back onto the interstate highway.
Because the automobile when went stop through “didn’t [it] [an unmanned, booth,” automatic Keith activated his grill lights toll] and stopped the automobile as it re-entered interstate high- way. testified that Dempsey he was at the southbound side already of the same when exit he received Keith’s call. Dempsey testified: “I was over stationary looking directly to the northbound lane when I saw the vehicle go through the right plaza, toll booth sign. stop It did not for stop sign at all.” Keith stopped Limonja at 12:10 informed her “that she p.m., had run booth,” the automatic toll and asked there any “was par ticular reason she why did this.” She told him she only that four quarters toll booth of ten required change exact cents. He then asked her driver’s license and rental automobile agreement. From his Keith position outside the automobile saw no luggage in the under passenger object and saw an compartment Brooks’ seat he After he received the identify.3 unable to Keith, At the conclusion of the Commonwealth’s recross of Officer examination judge questioned concerning trial see outside the the items he was able to from car and before the search: you The any Court: . . money . Did see on the floor in from the outside of the car the car? ' No,
The Witness sir. [Officer Keith]: you Court: You did not. Did radar detector? see the *12 asked to search the automo agreement, license and rental Keith the search. Limonja bile. He testified that and Brooks permitted guarded by were to leave the automobile and were They told .4During highway as stood the shoulder of the on Dempsey they automobile, a the of Keith first found radar detector search the seat where right in behind underneath the front stuck “partially toll Mr. Keith that both the booth sitting.” Brooks was testified are and detection offense traffic offense the radar possession of through offenses that are handled the issuance citations. trunk, Limonja Brooks and began
When Keith his search of the lug- the were Keith searched required luggage. to identify re- gage package A was gift wrapped but found contraband. idling from on the hood Keith’s moved the trunk and placed discovered, again Dempsey automobile. When the package was deliver- called the Brooks told Keith that he concerning dog. a sign and Keith to ing by the for a friend he asked package the docu- signed to search the Brooks package. written consent ment 12:45 at 12:48 p.m. but then revoked the consent p.m. consent, and were not Limonja When Brooks revoked his he per- of the high- mitted to to wait the side leave and were on required the efforts to locate a narcotics way while officers continued their waited, dog brought detection and have it to the scene. While concerning Keith and Brooks their destination questioned Limonja and on the hood gift the remained package. wrapped package radio at- was on his idling Dempsey vehicle while a tempting dog. locate was removed
When the 1:13 package arrived at p.m., front seat from the hood and on the of Keith’s automobile placed and, after the rental needed use toilet automobile. portion I The Witness: see a of it. could you Did
The Court: know what it was? exactly. The Witness: Not No sir. Dempsey Officer testified: (1) posted Limonja];” “I was at the side of the road with and [Brooks them;” watching (2) grass “They Limonja] up I was and on the when [Brooks and (3) watching Trooper safety “I was . . . for the [Keith].” out high- grass portion of the specifically, Dempsey posted More that he was “on testified traffic, watching watch- way, watching actually highway, off of vehicle and people ing Limonja].” Dempsey [Brooks said his “main concern was [Brooks Limonja] twenty hill.” . . feet on the side of road . [t]en arrived, the dog was taken by Trooper Worrell at 1:19 to a p.m. toilet in a restaurant. At nearby 1:23 assis- p.m. requested tance for of a search warrant for the preparation package. Worrell *13 returned with Limonja to the scene at 1:32 After p.m. Trooper scene, Worrell returned to the he saw dog go around the auto- mobile and then into the automobile. The state police dispatcher’s log reflects that Worrell advised the at 1:36 that dispatcher had “a hit.” Keith positive told Brooks that if he did not consent to a search of the package, a search warrant would be secured. Brooks then the search which permitted led to the of discovery cocaine. Brooks were arrested and later taken to the magistrate’s office. The traffic citations given were to Limonja at the magistrate’s office at 4:30 p.m.
“The Fourth Amendment is ...
a guarantee
. . . un-
against
reasonable searches and seizures.” United States v.
470
Sharpe,
675,
U.S.
Ohio,
682
In
v.
Terry
fied missibleThe reasonableness of requirement the Fourth Amendment requires less when the action is a seizure permitted on less than cause probable because of le- gitimate law enforcement interests. The the deten- scope of tion must be carefully tailored to its underlying justification.
The predicate seizures permitting short of suspicion probable cause is that law enforcement interests warrant limited intrusion on the personal security suspect. of
scope the intrusion will permitted to some extent with vary the particular facts and This circumstances of each case.
much, however, is clear: an investigative detention must temporary and last no longer necessary than to effectuate the purpose methods stop. Similarly, investigative of employed should be the reasonably least intrusive means in a short suspicion available to the officer’s verify dispel is the State’s burden to demonstrate time. It period seizure on the basis reasonable justify it seeks limited duration sufficiently scope suspicion investigative seizure. the conditions an satisfy 491, omit- (1983)(citations Royer, Florida A sub- ted) added). investigative detention for (emphasis purposes justification to the to a valid traffic and unrelated sequent stop that initial be so as to be unreasonable and may extended Recalde, See United States v. violative the fourth amendment. 1985). (10th 761 F.2d Cir. to demonstrate
In the
case the Commonwealth failed
present
vehicle,
Brooks,
be-
and their
Limonja,
that the seizure of
basis
a reasonable
longings
suspicion
on the
“justified]
.
the condi-
. .
limited
and duration
sufficiently
scope
satisfy
Al-
433 392 at 19 Terry, dered initiation U.S. (quot- permissible.” [their] 294, J., ing v. 387 U.S. 310 Hayden, (1967)(Fortas, Warden concurring)). Commonwealth, v. Taylor
Our
Court
held
Va.
recently
384,
reasonable,
App.
(1988) (en banc),
Not was the only continued seizure unlawful but delay which as occurred sought officers to validate their suspicions exceeded the bounds of reasonableness. The constitutional limits of the duration and of the detention to the revo- scope subsequent cation of Brooks’ consent to the narcot- prior discovery ics must be measured solely its to the valid by only pur- relation — pose of the traffic A issuance of a citation. officer is allowed “to an individual traffic detain stopped [a only time to obtain identifica- necessary satisfactory violation] tion from the violator United execute a traffic citation.” *15 Luckett, 89, States v. In this 1973). 484 F.2d Cir. case (9th subse- extraordinary detention occurred because “the officers’ quent actions were of nar- motivated their entirely by suspicions cotics,” Recalde, thus, 1455; 761 F.2d at the detention bore no to the observed traffic relationship violation. view,
In detention of my additional minute forty-eight Brooks and revoked his after Brooks Limonja, which occurred discovered, consent and unrelated to before the was cocaine purpose traffic Keith testified issuing a citation. stop. the initial written ten minutes after traffic citations had been However, on the to have “alerted” when the was reported though even issued traffic citations the officers had not package, since officers stopped minutes had twenty-six passed one hour and alerted, had ob- the officers the time the dog the vehicle. Until detention justify beyond factors that would served additional his the time Brooks revoked consent. after the and Brooks that occurred Limonja detention indis- “in important respects
revocation of Brooks’ consent became York, Dunaway v. New from a arrest.” tinguishable traditional detention, 200, During 442 U.S. the roadside (1979). or issue
did not
Brooks’ or
identification
Limonja’s
papers
return
licenses
informed neither that
their
traffic citations.
They
issu-
be
could leave. The
they
and
would
returned nor that
papers
the vehicle had
traffic
some four hours after
ance of the
citations
could not have left.
conclusively
been
establishes that
stopped
Thus,
captives
and Brooks were
of the officers
and
investigate
necessary
whatever time the officers deemed
to be drawn
probe their
“The
conclusion
inescapable
suspicions.
officers,
ar-
from
cause to
lacking probable
the record is that the
de-
seized
[Limonja]
illegal drugs,]
rest
for [transporting
[and]
suffi-
tained
at the
...
in the
hope
developing
[them
roadside]
Recalde,
“The
cient
435
687-88,
case, see 470
at
and
defendant
in that
U.S.
Brooks bore no
for the extensive detention to which
responsibility
Here
subjected.
solely
the detention
attribu-
delay
officers; thus,
table to the law enforcement
of the
length
“[t]he
detention . . . alone
conclusion
the seizure was
precludes the
Place,
reasonable.”
The suggestion that Brooks
to the search of the
consented
pack-
age after the
detention
illegal
and the sniff
the narcotics detec-
by
stated,
tion
must
dog
also fall. As earlier
the
“made a
police
‘seizure’ of
package] for
of the Fourth Amendment
purposes
[the
when,
search,”
following his refusal to consent to a
the police
called for assistance in arranging for the issuance of a search war-
rant and detained the
while
package, Limonja,
dog
Brooks
a
Place,
located. See
being
Because
limits,
the seizure and detention exceeded lawful
consent that was obtained was tainted
The evi-
by
illegality.
dence in this record does not establish a
break
the causal con-
nection between the illegal detention and the evidence obtained as
a consequence
217-18;
of the
See Dunaway, illegality.
U.S.
Illinois,
Brown v.
422 U.S.
602-05
An alleged con-
sent must be “sufficiently an act of free will to
purge
primary
taint” of
Brown,
the illegal detention.
Here,
detention;
the alleged consent occurred
during
illegal
moreover, there were no
circumstances
intervening
established
this record. The
of the
flagrancy
illegal
misconduct and
detention
can be measured
officers’
by
“quality
purposefulness”
Brown,
conduct.
Moreover, the
“consent”
after Keith
only
officers
procured
threatened to
further while he secured
detain
and Brooks
a search warrant. The
of the
action
police
appar-
coerciveness
ent. From the
was “an
for evidence’ admit-
outset this
‘expedition
”
turn
something might
up.’
undertaken ‘in the
that
tedly
hope
Brown,
605).
442
218
422
Dunaway,
(quoting
U.S. at
The manner which the seizure and search were conducted
is,
course,
of
whether
as vital a
of the
as
part
inquiry
were warranted at all. The Fourth Amendment
as
proceeds
governmental
much
limitations
action
by
upon
scope
as
its
The entire
by imposing
initiation.
preconditions upon
rule
seized in vi-
purpose
excluding
deterrent
of the
evidence
of the
rests on
assumption
olation
Fourth Amendment
to limit
gathered
that “limitations
the fruit to be
tend
upon
if
Thus,
it
itself.”
not
introduced
quest
may
evidence
was discovered means of a
and search which
seizure
by
for their
reasonably
scope
justification
related
initiation.
(citations omitted).
Terry, to hold that a Place Finally, relies majority incorrectly upon the package search did not when the was used sniff dog occur “exposure Place’s holding the contents of the automobile. to a in a place, which was located respondent’s luggage, public - meaning trained canine a ‘search’ within did not constitute U.S. at the Fourth to this case. Amendment” inapposite sniffed was added). Here the (emphasis package the authorities in a because it was removed only public place by hood detained on the from the trunk the automobile and to sniff a use of detection idling vehicle. The a narcotics police in the domain unlawful package by that has been placed public this consti action such as under the circumstances of case tuted a cause. warrantless without probable search reasons, For these I would hold that the motions to suppress should granted. have been *18 Place, recognized It should personal also be noted that in the Court that when
luggage
possession
arranging
is seized
suspect
purpose
from “the immediate
for the
exposure
dog,” police
may
suspect
to a narcotics detection
behavior
if the
less intrusive
depart
is allowed
luggage
technically
and leave his
still free to
with
because he “is
carry
luggage.
continue his
personal
pending
travels or
out other
activities
release of the
Moreover,
subjected
atmosphere
he is not
to the coercive
confinement or to the
custodial
public indignity
being
708;
personally
States v.
detained.” 462 U.S. at
see also United
Alpert,
(4th
case, however,
1987).
Limonja