Robert A. Worley v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
ROBERT A. WORLEY
v. Record No. 1913-94-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JANUARY 30, 1996
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge
Bruce P. Ganey, (Ganey & Laibstain, P.C., on
briefs), for appellant.
Marla Graff Decker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Robert A. Worley appeals his convictions for transportation
of cocaine with intent to distribute, conspiracy to distribute
cocaine, possession of cocaine with intent to distribute,
possession of cocaine while in possession of a firearm, and
driving on a suspended operator's license. Worley contends that
the trial court erred by overruling his motion to suppress the
drugs seized from his vehicle and by ruling the stop to be legal.
We hold that there was no reasonable suspicion to conduct a
Terry stop and that, therefore, the trial court should have
sustained the motion to suppress and held the stop to be illegal.
The defendant was "seized" for the purposes of the Fourth
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Amendment when Deputy Sheriff McGrain stopped the defendant's
truck. Zimmerman v. Commonwealth, 234 Va. 609, 611, 363 S.E.2d
708, 709 (1988). An investigatory Terry stop does not violate
the Fourth Amendment when the officer possesses an "articulable
and reasonable suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the vehicle or an
occupant is otherwise subject to seizure for violation of law."
Delaware v. Prouse, 440 U.S. 648, 663 (1979). Although Deputy
McGrain determined that the owner of the truck had a suspended
license, he did not determine whether the driver was the owner
before stopping the truck. See id. at 661 (stating that there
must be an "articulable basis amounting to reasonable suspicion
that the driver is unlicensed") (emphasis added).
In Hoye v. Commonwealth, 18 Va. App. 132, 133-34, 442 S.E.2d
404, 405-06 (1994), a police officer stopped a vehicle after
determining that the registered owner was a habitual offender.
We held that the officer had reasonable and articulable suspicion
because she obtained a description of the owner from the
Department of Motor Vehicles (DMV) records and confirmed "that
the vehicle's driver matched the description of the registered
owner as to gender and approximate height, weight, and hair
color." Id. at 135, 442 S.E.2d at 406.
The record in the present case does not show that Deputy
McGrain obtained a description of the truck's owner when he
checked the DMV records. In fact, Deputy McGrain testified that
- 2 -
he did not know whether the defendant was the owner when he
stopped the truck. Although Hoye does not require the police to
verify every detail of the description of a suspended license a
police officer must possess some articulable fact or facts to
support the inference that the driver is the owner of the
vehicle. Deputy McGrain had no reason and articulated no basis
to suspect that the driver of the truck was the owner whose
license was suspended, and therefore, Deputy McGrain's stop was
based solely upon a hunch. 1 See Beckner v. Commonwealth, 15 Va.
App. 533, 537, 425 S.E.2d 530, 533 (1993) (holding that the facts
the police rely on must amount to more than a "hunch").
Admittedly, because automobiles "are subjected to pervasive
and continuing governmental regulation and controls, including
periodic inspection and licensing requirements," an individual's
expectation of privacy in his automobile is greatly diminished.
1
Deputy McGrain testified that he initially became
suspicious of the defendant and his companion because "[t]hey
were . . . wandering up and down the aisles" of the 7-Eleven
store. However, the Deputy did not indicate that he stopped the
truck for any reason other than to investigate whether the
defendant was the owner and was operating the truck with a
suspended license. Accordingly, we do not decide whether the
Deputy's observations may have created reasonable suspicion that
the defendant and his companion were "casing" the store.
- 3 -
South Dakota v. Opperman, 428 U.S. 364, 368 (1976). Nonetheless,
to hold that a police officer has a reasonable suspicion to
conduct a Terry stop where the officer has determined only that
the vehicle's owner has a suspended operator's license would
justify the indiscriminate stop of every vehicle owned by an
individual with a suspended license. The Fourth Amendment does
not countenance such an intrusive violation of privacy. See
Delaware v. Prouse, 440 U.S. at 662 ("An individual operating or
traveling in an automobile does not lose all reasonable
expectation of privacy simply because the automobile and its use
are subject to government regulation.") Therefore, we hold that
the officer in this case did not possess reasonable suspicion to
conduct a Terry stop and that the trial court erred by overruling
the motion to suppress and by ruling the stop to be legal. The
defendant's convictions are reversed and the case is remanded for
further proceedings if the Commonwealth be so advised.
Reversed and remanded.
- 4 -